IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR FRIDAY, THE 19TH JUNE 2009 / 29TH JYAISHTA 1931 WA.No. 1111 of 2009() --------------------- AGAINST THE JUDGEMENT IN OP.13882/1998 Dated 27/01/2009 .................... APPELLANT(S): ADDITIONAL PETITIONERS: ------------------------------------- 1. GEETHA KRISHNANKUTTY, W/O.LATE G.KRISHNANKUTTY, `GEETH', T.C.49/905(1) KONCHIRA VILA, MANACAUD P.O., THIRUVANANTHAPURAM. 2. ABIL KRISH.K., S/O.LATE G.KRISHNANKUTTY, `GEETH',TC/49/905(1) KONCHIRA VILA, MANACUAD P.O., THIRUVANANTHAPURAM. 3. ANUJA KRISHNAN (MINOR), D/O.LATE G KRISHNANKUTTY, `GEETH', TC/49/905(1) KONCHIRA VILA, MANACAUD P.O., THIRUVANANTHAPURAM, REPRESENTED BY HER MOTHER AND GUARDIAN GEETHA KRISHNANKUTTY. BY ADVS. SRI.K.RAMAKUMAR, SENIOR ADVOCATE SRI.T.RAMPRASAD UNNI SMT.SMITHA GEORGE RESPONDENT(S)/RESPONDENTS: --------------- 1. THE DIRECTOR GENERAL, RAILWAY PROTECTION FORCE, RAILWY BHAVAN, NEW DELHI. 2. THE CHIEF SECURITY OFFICER, RAILWAY PROTECTION, MADRAS-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, REPRESENTED BY DIRECTOR GENERAL, RAILWAY PROTECTION FORCE, NEW DELHI. 6. DIVISIONAL SECURITY COMMISSIONER RAILWAY PROTECTION FORCE, PALAKKAD. BY ADV. SRI. ALEXANDER THOMAS SC. FOR RAILWAYS THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 1/06/2009, THE COURT ON 19.6.2009 DELIVERED THE FOLLOWING: 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