* THE HON’BLE MR JUSTICE L.NARASIMHA REDDY +WRIT PETITION No.8019 OF 2008 %Dated 02.05.2008 #S.A.Basha …Petitioner. and $ Deputy Chief Security Commissioner, Railway Protection Force, Rail Nilayam, Secunderabad andothers. …Respondents ! Counsel for petitioner: Sri J.M.Naidu ^ Counsel for Respondents : Sri A.Krishnam Raju < GIST: > HEAD NOTE: ? Cases referred 2001 (6) ALD 18 (FB) IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE SECOND DAY OF MAY TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE L.NARASIMHA REDDY WRIT PETITION NO : 8019 of 2008 Between: S.A. Basha, S/o. late S. Mohd. Hussainj, R/o. H.No. 3/69, Akkayapalli, Ravindra Nagar Post, Kadapa District. Andhra Pradesh. ..... PETITIONER AND 1 Deputy Chief Security Commissioner, Railway Protection Force, Rail Nilayam, Secunderabad. 2 Divisional Security Commissioner, Railway Protection Force, Guntakal Division, Guntakal, Anantapur District. 3 Sri. G.C. Dharma Rao, Assistant Security Commissioner, R.P.F., Renigunta Sub-Division, Guntakal Division, Renigunta, Chittoor District. .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to o issue Writ or Order or direction more particularly one in the nature of Writ of mandamus declaring the action for the 3rd Respondent in submitting his Report without giving any opportunity to Cross examine the witnesses in the Charge Sheet No. X/P.22/153/4/2007, dated Nil-08-2007 is illegal, arbitrary and violative of Article 14 and 16 of the Constitution of India and consequently direct the 1st Respondent to order Re-enquiry. Counsel for the Petitioner:MR.J.M.NAIDU Counsel for the Respondents: MR.R.S.MURTHY The Court made the following : ORDER: The petitioner is working as Inspector in the RPF. Disciplinary proceedings were initiated against him by issuing a charge sheet in August, 2006, wherein certain charges were framed. After receiving the explanation, submitted by the petitioner, the competent authority appointed the third respondent, as an Enquiry Officer. Departmental enquiry was conducted, and ultimately, the third respondent submitted his report on 29.08.2006, holding that the charges framed against the petitioner, are proved. The first respondent, in turn, addressed a letter, dated 01.02.2008, to the petitioner inviting his objections/comments on the findings recorded in the report. The petitioner filed this Writ Petition for a writ of mandamus declaring the action of the third respondent in submitting his report, on the ground that he did not permit him to cross-examine the witnesses named in the charge sheet, during the course of enquiry. Sri J.M.Naidu, learned counsel for the petitioner, submits that the petitioner is entitled to engage the services of a “friend” under Rule 153(8) of the Railway Protection Force Rules, 1987 (for short “the Rules”) and that the third respondent did not extend such facility, though, a “friend”, by name J.K.Nanda, was accorded permission to a limited extent. Learned counsel for the respondents, on the other hand, submits that the petitioner cannot challenge the report of the Enquiry Officer, which is only in the form of an opinion and his cause of action cannot be said to have accrued to him. He contends that the petitioner also submitted explanation, and at this stage, the proceedings cannot be interdicted. Not being satisfied with the explanation offered by the petitioner to the charge sheet, the first respondent appointed the third respondent as an Enquiry Officer. Several witnesses were examined and many documents were filed by the department as well as the petitioner, with reference to the charges levelled against the petitioner. Rule 153(8) of the Rules confers right upon an employee to avail the services of a “friend”, as opposed to a legal practitioner. The Rule restricts the assistance of such a “friend” and does not permit him to cross-examine the witnesses on behalf of the delinquent employee. A Full Bench of this Court in K.Raghuram Babu v. Director General of Railway Protection Force, New Delhi held the provision, to the extent that it prohibits the cross-examination of witnesses by the “friend” as unconstitutional. In the instant case, even according to the petitioner, the “friend” identified by him, was permitted to cross-examine the witnesses. The only defence put forward by the petitioner in his explanation to the show cause notice issued after the report of the Enquiry Officer, in this regard, reads as under: “I have not been provided legal assistance during enquiry on some occasion. I have specifically requested to provide Sri J.K.Nanda, IPF/CIB/SC as Friend (Defence Assistant) for cross examination of witnesses and for Defence statement and the same was not provided for cross examination of few witnesses and for Defence statement.” From this, it is evident that not only the petitioner was permitted to avail the services of “friend”, by name J.K.Nanda, but also the said “friend” was permitted to cross- examine the witnesses. The objection is very vague as to the names of “few witnesses”, who were said to have not been permitted to be cross-examined by the “friend”. Further, such an objection does not appear to have been raised before the third respondent. The report of the Enquiry Officer by itself does not bring about any situation, vis-à-vis the delinquent employee. At the most, it is an opinion of the Officer, as to the correctness, or otherwise of the charges. While an employee can assail the report or the findings therein whenever the charges are held proved, the employer, or the disciplinary authority, can differ with the findings of an Officer holding that the charges are not proved. Therefore, except that it has a persuasive value, the Enquiry Report does not bring about any legal rights or obligations, be it vis-à-vis the employer or the delinquent employee. Assuming that the proceedings in the domestic enquiry suffer from any serious infirmity, it shall always been open to him to point out the same in his explanation to the show cause notice issued, after such report. There is no reason to believe that the disciplinary authority would not take the same into account. Even where any substantial objection raised on behalf of an employee is not taken into account, the defect, wherever it exists, can be corrected, either in the departmental remedies of appeal and review, or by the judicial forum; be it a Labour Court, or this Court under Article 226 of the Constitution of India. Either way, there does not exist any occasion for interference with the report of an Enquiry Officer. In case, the Enquiry Officer himself lacked competence, necessary objection has to be raised at the inception itself. Once the departmental or domestic enquiry culminates into the report, the only way it can be adverted to is by making necessary submissions in the explanation or by assailing in the Court in case, any order adverse to the interests of the employee is passed. At any rate, the petitioner has already submitted his explanation and he has to await the out come thereof. Viewed from any angle, the Writ Petition cannot be maintained. The Writ Petition is accordingly dismissed. There shall be no order as to costs. ____________________ Dt.02.05.2008 L.NARASIMHA REDDY, J L.R.Copy to be marked. GJ ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1.2CCs to 2.2CD copies Form-NIC-OGS/WP{SPJS}