IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 27TH JANUARY 2009 / 7TH MAGHA 1930 OP.No. 13882 of 1998(C) ----------------------- PETITIONER(S): --------------- 1. G.KRISHNANKUTTY, S/O.LATE C.R.GOPINATHAN NAIR, “GEETH”, TC/49/905(1) KONCHIRA VILA, MANACAUD P.O., THIRUVANANTHAPURAM. ADDITIONAL PETITIONERS: 2. GEETHA KRISHNANKUTTY, W/O.LATE G.KRISHNANKUTTY, -DO- -DO- 3. ABIL KRISH.K., S/O.LATE G.KRISHNANKUTTY, -DO- -DO- 4. ANUJA KRISHNAN (MINOR), D/O.LATE G.KRISHNANKUTTY, -DO- , REP. BY HER MOTHER AND GUARDIAN GEETHA KRISHNANKUTTY, THE 1ST PETITIONER. (P2 TO P4 IMPLEADED AS PER ORDER IN I.A.NO.8014/04 DTD. 29.6.04) BY ADV. SRI.K.RAMAKUMAR SRI.SAIBY JOSE KIDANGOOR SRI.T.RAMPRASAD UNNI SRI.T.RAMPRASAD UNNI RESPONDENT(S): --------------- 1. THE DIRECTOR GENERAL, RAILWAY PROTECTION FORCE, RAILWAY BHAVAN, NEW DELHI. 2. THE CHIEF SECURITY OFFICER, RAILWAY PROTECTION FORCE, MARDRAS-3. 3. N.K.PRADMANABHAN, ASST. SECURITY COMMISSIONER, RAILWAY PROTECTION FORCE, KHAJADAPARA EASTERN RAILWAY (VIA. NAHATTI). 4. P.V.SUBRAMANIAN, ENQUIRY OFFICER, ASST. SECURITY COMMISSIONER, RAILWAY PROTECTION FORCE, SOUTHERN RAILWAY, THIRUVANANTHAPURAM. 5. UNION OF INDIA, REP. BY DIRECTOR GENERAL, RAILWAY PROTECTION FORCE, NEW DELHI. 6. DIVISIONAL SECURITY COMMISSIONER, RAILWAY PROTECTION FORCE, PALAKKAD. (R3 to R6 IMPLEADED AS PER ORDER IN CMP NO.29424/01 DTD.2.7.01) ADV. SRI.ALEXANDER THOMAS, SC,RAILWAYS THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 27/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.No. 13882/98. APPENDIX PETITIONER(S)' EXHIBITS P1. COPY OF THE REPORT BY THE P.A. TO CHIEF SECURITY COMMISSIONER. P2. COPY OF THE MEMORANDUM DTD.15.12.95. P3. COPY OF THE REPRESENTATION DTD.19.2.97. P4. COPY OF THE ORDER DTD.3.10.97. P5. COPY OF THE APPEAL DTD.24.10.97. P6. COPY OF THE ORDER DTD.27.4.98 BY THE DIRECTOR GENERAL, RPF. P7. COPY OF THE DEATH CERTIFICATE P8. COPY OF THE ENQUIRY REPORT. P9. COPY OF THE COMMUNICATION DTD.17.10.95. RESPONDENT(S)' EXHIBITS: ANNEXURE R1A. COPY OF THE REVISION PETITION DTD.27.10.99 OF THE PETITIONER. B. COPY OF THE LETTER DTD.2.8.2000 FROM RAILWAY BOARD. C. COPY OF THE LETTER DTD.11.8.2000 OF R2 TO R1. D. COPY OF THE ORDER DTD.22.2.2001 BY THE GOVT. OF INDIA. Sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== O.P.No. 13882 of 1998. ================== Dated this the 27th day of January, 2009 J U D G M E N T The petitioner who filed this original petition is no more. His legal heirs have impleaded themselves as additional petitioners to prosecute the original petition. 2. The petitioner was an Inspector in the Railway Protection Force. In 1995, disciplinary proceedings were initiated against him by Ext.P2 memo of charges for certain acts of misconduct, which involved acceptance of illegal gratification from candidates who were recommended for appointment in the Railway Protection Force for verifying the character and antecedents of whom the petitioner was deputed. The petitioner filed reply to Ext.P2. Being unsatisfied with the reply, an enquiry was ordered. An enquiry officer was appointed who, after enquiry, submitted Ext.P8 enquiry report. Thereafter, the petitioner was served with a copy of the enquiry report with an opportunity to file representation against the same. The petitioner filed Ext.P3 representation. The disciplinary authority after considering the representation filed by the petitioner, passed Ext.P4 order, agreeing with the findings of the enquiry officer and imposing on the petitioner the punishment of dismissal from service. The petitioner filed Ext.P5 appeal before the appellate authority against that order. The appellate authority passed Ext.P6 order, wherein the order of punishment was o.p.13882/98 2 reduced to one of compulsory retirement. (The respondents would point out that the petitioner had filed a revision petition against Ext.P6, which was also rejected. The petitioner has not challenged that order.) The petitioner has filed this original petition challenging Exts.P4 and P6 orders and seeking a direction to reinstate the petitioner back in service with all attendant benefits. 3. The petitioner raises several contentions as follows:- (1) The enquiry officer relied upon a preliminary enquiry report in which the petitioner was not given an opportunity to participate. As such, the enquiry report relying on that preliminary report prepared behind the back of the petitioner is violative of the principles of natural justice. (2) The second is that as per Rule 248 of the Railway Protection Rules, 1997, an 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 and in this case, admittedly the enquiry officer was only an Assistant Security Commissioner. (3) The charge memo itself is unsustainable in so far as Rule 42.5 of the Railway Protection Force Rules stipulates that no member of the force shall be deployed for verifying the antecedents and character of any employee and, the alleged misconduct is in the process of verifying antecedents and character of persons who were to be employed in the force. That being so, the charge memo itself is not sustainable. (4) Under Rule o.p.13882/98 3 163 of the Railway Protection Force Rules, when two or more members of the force are involved in any case, the disciplinary action should be in a common proceeding. In this case the petitioner and another employee who was stated to be the accomplice of the petitioner were proceeded against in the disciplinary action separately, which vitiates the proceedings. (5) The petitioner was not served with a second show cause notice regarding the punishment and therefore, the proceedings are vitiated for violation of principles of natural justice. (6) Lastly, the petitioner contends that the findings in the enquiry report are perverse. 4. A counter affidavit has been filed by the respondents in support of the impugned orders. I have heard the counsel for the respondents also. 5. I have considered the rival contentions in detail. 6. The charge against the petitioner is 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 gratuity without authority from some candidates selected 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.” 7. A preliminary enquiry was conducted by one Padmanabhan, who obtained statements from 15 persons to the effect that they had paid money to the petitioner in respect of their o.p.13882/98 4 appointment as Constables in the Railway Protection Force. Of course, in the preliminary enquiry the petitioner was not given any opportunity. But that does not ipso facto mean that the enquiry proceedings are vitiated. The preliminary enquiry is being conducted to satisfy the disciplinary authority, prima facie, that there is a case for initiating disciplinary proceedings, which only has been done in the preliminary enquiry. From Ext.P8 enquiry report I find that all the persons who gave statements in the preliminary enquiry were examined as witnesses in the enquiry, as also the officer who conducted the preliminary enquiry and the Junior Clerk who recorded the statements of the witnesses. The statements were also marked as evidence in the enquiry. All of them were cross-examined by the petitioner also. As such, none of the evidence relied upon by the enquiry officer was so relied upon behind the back of the petitioner. The petitioner was given ample opportunity to controvert every evidence produced in the enquiry against him. The enquiry officer who conducted the preliminary enquiry himself was a witness in the enquiry. On a reading of Ext.P8 enquiry report there is nothing therein to show that the enquiry officer has merely relied upon the preliminary report. On the other hand, the evidence of all the persons who deposed in the enquiry has been separately considered for arriving at a finding of guilt against the petitioner. As such, I do not find any merit o.p.13882/98 5 whatsoever in the first contention of the petitioner that the preliminary enquiry report prepared behind his back of the petitioner has been relied upon to find him guilty. 8. The second contention is that, under Rule 248.1 of the Rules, in an enquiry against an Inspector, which the petitioner was, the enquiry officer shall be of and above the rank of Security Commissioner. I am not impressed by this contention also. Rule 248.1 appears in Chapter XVII of the Railway Protection Rules 1987, which relates to prosecution and the enquiry prior to initiating prosecution. In respect of that enquiry only the enquiry in respect of an allegation against an Inspector has to be conducted by an enquiry officer of and above the rank of the Security Commissioner and not in a disciplinary proceedings. On the other hand, disciplinary proceedings against a member of the Force are governed by Chapter XII of the Rules, which contains an elaborate procedure for conducting disciplinary proceedings. Rule 153.2.1 of that Chapter relates to appointment of enquiry officer, which 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 misbehaviours 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. That only requires that the enquiry officer should be higher in rank to the member charged with against whom disciplinary proceedings are o.p.13882/98 6 to be initiated. Here, admittedly, the enquiry officer was in the rank of Assistant Security Commissioner, who is higher in rank to the petitioner who was only an Inspector. In the above circumstances, I am not inclined to accept the second contention also. 9 The third contention of the petitioner is based on Rule 42.5 of the Rules. Rule 42.5 reads thus: “42.5. No member of the Force shall be 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.” That rule relates only to verification of the antecedents and character of any employee. In this case, the petitioner was deputed not for verifying the antecedents or character of any existing employee of the Force. He was only asked to verify the antecedents or character of persons proposed to be recruited to the Force. That being so, there is no merit in the said contention also. 10. The next contention is based on Rule 163 of the Rules, which 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.” I am of opinion that it is not a mandatory requirement that a common proceeding has to be conducted in every case where disciplinary action against two or more enrolled members is involved in a case. That is o.p.13882/98 7 only an enabling provision wherein common proceeding was permitted when two or more members of the Force are involved in any case. The normal rule is separate proceedings and Rule 163 provides for common proceedings, which is not mandatory in all cases. It is in the discretion of the disciplinary authority based on exigencies of the situation. In any event, the petitioner has no case that such separate proceedings have prejudiced his case in any manner. In any As such, the contention based on Rule 163 of the Rules also fails. 11. The next contention is that the petitioner was not given a second show cause notice regarding the punishment. Disciplinary proceedings were initiated in 1995. The punishment was imposed in 1997. That was prior to the Supreme Court decision which stipulates that a second show cause notice regarding punishment is mandatory. The Supreme Court also made the same applicable prospectively only. Even otherwise, even if the contention of the petitioner is accepted, the course of action open is to remand the matter to the disciplinary authority for deciding the matter afresh after giving the petitioner another opportunity, which is not possible in this case, since the petitioner is no more. Even otherwise, it would be a futile exercise in so far as the charge proved against the petitioner is that of accepting illegal gratification from prospective members of the Force, which is a very serious charge that would warrant very severe punishment. As o.p.13882/98 8 such, I am not inclined to accept that contention. 12. Lastly, the petitioner would contend that the findings are perverse. He would point out that several witnesses have deposed before the enquiry officer that they were coerced into giving statement. The petitioner has taken me through several portions of Ext.P8 enquiry report. It is not disputed before me that although some witnesses deposed that they gave statement not voluntarily, some of the witnesses had categorically stated that they had paid money to the petitioner. Further, the enquiry officer has discussed the evidence of each witness elaborately and has given cogent reasoning in support of his conclusions. It is settled law that in disciplinary proceedings sufficiency of evidence is not a matter for this Court to consider in proceedings under Article 226 of the Constitution of India. It is also settled law that if some evidence is available, that would be sufficient to uphold the findings. Here undoubtedly at least some evidence is available, which would prove the petitioner's guilt. As such, I do not find any merit in the last contention also. For all the above reasons I do not find any merit in the original petition and accordingly, the same is dismissed. All interlocutory applications stand closed. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge S.SIRI JAGAN, J. =============== O.P.No. 13882 of 1998-C =============== J U D G M E N T 27th January, 2009 o.p.13882/98 10