HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU S.A. NO.69 OF 2006 Date:07.04.2010. Between: S.N. Patro …..Appellant. And: The Security Officer, South Eastern Railway, Visakhapatnam and another …..Respondents. HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU S.A. NO.69 OF 2006 ORDER: 1. The plaintiff is the appellant. Having failed in securing relief prayed for in both the courts below, he approached this Court with this Second Appeal. The plaintiff was working as Rakshak in Railway Protection Force. Alleging that the plaintiff was absent in his duty on 15.03.1983 at Koraput guard from 8.00 hours to 16.00 hours and was found in the house of one Naik and failed to turn up for dismounting duty. The plaintiff was charge sheeted and kept under suspension. Criminal case inC.C.No.19 of 1983 was also filed against him before the Sub Divisional Magistrate Court, Koraput. Departmental enquiry was instituted against the plaintiff. In the departmental enquiry, the plaintiff was found guilty of the charge. The plaintiff was removed from service in pursuance of the enquiry report. On this subject, the plaintiff filed O.S.No.875 of 1984 in the I Additional District Munsif Court at Visakhapatnam challenging show-cause notice issued by the 1st defendant for his removal basing on the enquiry report. Subsequently he added the 2nd defendant also in the suit. He filed IA No.848 of 1989 for amendment of plaint in order to include relief of his reinstatement into service with back wages and seniority as he was removed from service on the basis of enquiry report. The trial court dismissed IA No.848 of 1989 by order dated 24.10.1989 and it became final. Thereafter, he filed IA No.1025 of 1990 and he allowed to amend the plaint incorporating the relief of declaration that removal notice dated 19.12.1984 issued to him is null and void and unenforceable and for permanent injunction restraining the defendants from acting upon the show-cause notice on the ground that the said removal was during pendency of the suit and trial of the criminal case which ultimately ended in acquittal. Main ground on which the plaintiff sought reliefs in the suit is that the principles of natural justice were not followed during enquiry inasmuch as he was not supplied with necessary documents and was not allowed to peruse required official records. 2. The defendants/department opposed claim of the plaintiff on several grounds. The plaintiff joined in service on 20.09.1967. It is stated that his annual reports for the years 1971 to 1973, 1975 to 1977, 1982 and 1983 were not upto the mark and that two major punishments and six minor punishments were inflicted on him previously and that he was placed under suspension from 15.03.1983 to 18.09.1983 as he was involving in Criminal Case No.7 of 1983 for offence under the Railway Property (unlawful possession) Act, and he was arrested on 15.03.1983 and that the plaintiff deserted his duty at Koraput Railway Station Yard on 15.03.1983. When departmental enquiry was pending, the plaintiff approached the High Court in Writ PetitionNo.8540 of 1983 and obtained stay of departmental proceedings. Ultimately, the Writ Petition was dismissed on17.02.1984. The department alleges that the enquiry was completed after affording all reasonable opportunities to the plaintiff as required under the rules after supplying all the relevant records for the plaintiff’s scrutiny and that the 1st defendant as disciplinary authority issued show-cause notice dated 23.08.1984 to the plaintiff proposing penalty of removal from service as he was found guilty in the departmental enquiry and that the plaintiff approached the court prematurely even before offering explanation to the show-cause notice and without exhausting remedies open to him as per rules. 3. The trial court after trial, in which the plaintiff examined himself as P.W.1 and marked Exs.A-1 to A-11 on his behalf and the defendants marked Exs.B-1 to B-11 on their behalf, dismissed the suit without cots by decree dated 24.06.1991. On appeal in A.S.No.147 of 1991 filed by the plaintiff, the II Additional District Judge, Visakhapatnam by decree dated 10.04.1996 dismissed the appeal without costs. 4. In this Second Appeal, though four grounds were mentioned as substantial questions of law, the appellant’s counsel urged only two grounds before this Court at the time of hearing of this Second Appeal. It is contended by the petitioner’s counsel that principles of natural justice were not followed during the enquiry inasmuch as copies of documents were not furnished to the appellant. It is further contended for the appellant that both the courts below did not consider disproportionality of punishment. 5. First ground mentioned in the memorandum of appeal is to the effect that enquiry officer is biased since he is a departmental colleague of the first defendant. In departmental enquiries, enquiry officers will not be judges or judicial officers. Only departmental personnel/officers who are above the rank of the delinquent will be nominated as enquiry officers. Naturally they may be subordinates to the disciplinary authority. Simply because the enquiry officer is a person belonging to the same department, it cannot be said that enquiry is in any way vitiated on that ground. Except official bias or departmental bias, no other bias is attributed to the enquiry officer in this matter. It is not as if the enquiry officer was in any way interested in subject matter of the charge levelled against the appellant. It is for that reason, the appellant’s counsel did not choose to urge this ground before this Court at the time of hearing of this appeal. 6. It is urged in the grounds that departmental action is not valid even after acquittal in criminal case. Subject-matter of the departmental proceedings and subject-matter of the criminal case are totally different in the case of the appellant. Charge in the departmental enquiry against the appellant was that he un-authorisedly absconding himself from duty; whereas charge in the criminal case against the appellant was under Section 3(a) of the Railway Property (unlawful possession) Act. Simply because the appellant was acquitted in criminal case, vide Ex.A-3 judgment, the appellant is not entitled to get positive relief in the departmental enquiry. It is for that reason, the appellant’s counsel did not urge this point also before this Court during hearing of this appeal. 7. Both the counsel cited catena of reported decisions regarding scope of judicial review in an action against departmental enquiry proceedings. They are: 1. Ranjit Thakur v. Union of India[1] 2. State Bank of India v. Samarendra Kishore Endow[2] 3. B.C. Chaturvedi v. Union of India[3] 4. Union of India v. G. Ganayutham (dead) by LRs.,[4] 5. Om Kumar v. Union of India[5] 6. N. Lokanadham v. Chairman, Telecom Commission[6] 7. Chairman & Managing Director, V.S.P. v. Goparaju Sri Prabhakara Hari Babu[7] 8. K. Yadaiah v. Chief Security Commissioner, Railway Protection Force, South Central Railway, Secunderabad[8] 9. D. Kalyan Ram v. General Manager, Union of India, South Central Railway, Secunderabad[9] 10. Bachan Singh v. Union of India[10] 11. C.A. Shankar Prasad v. Karnataka State Adult Education Council[11] 12. Union of India v. Giriraj Sharma[12] 13. Commissioner of Rural Development v. A.S. Jagannathan[13] 14. Areti Maramma v. State of India, Secunderabad[14] 15. K. Balangi Reddy v. APSRTC, Hyderabad[15] 16. LT. Governor of Delhi v. Dharampal[16] 17. Pravin Madhusudan Mangle v. Union of India[17] 18. Srinivasan v. Director, Ministry of Defence, D.R.D.O., New Delhi[18] 19. Sikander Ielamkhan v. Union of India[19] 20. P. Balachandra Reddy v. The Depot Manager, APSRTC., Anantapur[20] 2 1 . The Deputy Chief Security Commissioner, Railway Protection Force, South Central Railway, Rail Nilayam, Secunderabad v. T. Raj[21] (unreported decision) 22. D. Ramulu v. The Government of India[22] (unreported decision) All the above decision were rendered by the Supreme Court and various High Courts including this High Court on exercise of extraordinary original jurisdiction under Article 226 of the Constitution of India. The appellant though invoked extraordinary original jurisdiction of the Calcutta High Court by way of Writ Petition questioning his removal order, has chosen to withdraw the same and to get it dismissed as withdrawn. The appellant has chosen to invoke ordinary original jurisdiction of the Civil Court i.e, the I Additional District Munsif, Visakhapatnam under Section 9 C.P.C by way of Original Suit No.275 of 1984. It is well settled principle of law that the Courts in proceedings against departmental enquiries and departmental actions under departmental rules, cannot sit in appeal over departmental disciplinary proceedings/orders and the court’s jurisdiction is limited to scrutiny as to whether the process ending with departmental action against the delinquent was in accordance with departmental rules and established principles of law. The Courts cannot substitute their own findings in such proceedings in the place of findings of enquiry officer or disciplinary authority. 8. In the case on hand, the appellant contends that principles of natural justice were not followed in the departmental enquiry because documents sought for by him in Exs.A-7, A-8 and A-9 letters were not furnished to him. A perusal of those letters shows that most of the alleged documents sought for were not in existence at all. That is the reason why the appellant has mentioned in description of those documents as “if any” recorded or available. In the absence of proof of existence of any such documents, it does not lie in his mouth to contend that copy of such non-existing document was not supplied to him. Exs.A-7 to A-9 further read as if the appellant was not only seeking documents which are non-existent, but those letters are almost in the nature of serving interrogatories on the department. No provision is pointed out by the appellant’s counsel from relevant departmental rules giving right or opportunity to a delinquent to serve interrogatories on the department seeking answers therefor. The appellant addressed those letters Exs.A-7 to A-9 prior to giving explanation to charge memo served on him on the ground that such documents are necessary for purpose of giving his explanation to the charge memo. After available and relevant documents are either furnished to the appellant or permitted to be perused by the appellant, the appellant gave his explanation to the charge memo as per Ex.A-6. In Ex.A-6 explanation the appellant did not plead that he suffered any handicap for allegedly not supplying of any document or for non permission for perusal of any document by the department. Further, after enquiry report was given by the enquiry officer, the report was served on the appellant along with Ex.A-1 show-cause notice proposing punishment of removal from service, the appellant gave further explanation therefor. Even in that representation, the appellant did not raise any ground to the effect that the departmental enquiry was vitiated due to non supply of copies of any documents to him. For the first time, the appellant/plaintiff took this ground in the plaint in the suit. This ground mentioned in the plaint is also vague and bald. The plaintiff/appellant did not specify either in his plaint or in his evidence as P.W.1 as to which available document was not shown to him and copy of which document was not supplied to him. Thus, this legal ground has no factual basis. Both the courts below rightly overruled this objection of the appellant as baseless and untenable. 9. In so far as disproportionality of punishment is concerned, the plaintiff/appellant did not specifically urge this ground in his pleading i.e., plaint. As pointed out earlier originally the suit was instituted questioning Ex.A-1 show-cause notice dated 23.8.1984 proposing punishment of removal. The original plaint was filed even before imposing punishment of removal on him. Therefore, there was no occasion for him to urge the ground regarding dis-proportionality of punishment imposed on him. Subsequent to passing of Ex.A-11 order dated 19.12.1984 imposing punishment of removal on the appellant, the plaintiff got amended in order to question Ex.A-11 order of removal, by way of adding prayer to that effect and adding para No.III (k) in the plaint. In the newly added sub para (k), the plaintiff did not question Ex.A-11 order of removal on the ground that punishment imposed by the first defendant/disciplinary authority on him is disproportionate. In case, the plaintiff pleaded the said ground in the amended plaint, then the department/defendants would have substantiated proportionality and reasonableness of imposing punishment of removal on him by way of filing additional pleading on their behalf in this regard and leading evidence on this aspect. In the absence of any specific pleading by the plaintiff on this ground, the plaintiff/appellant may not be fair and legally competent to urge this ground at the time of arguments. The appellant was working as Rakshk in Railway Protection Force and he was assigned duty of guarding Railway Yard in Koraput Railway Station. In Railway Yard, there will be not only huge Railway properties but also number of goods wagons transporting vast and valuable articles and commodities which are being transported from station to station. The duties of guarding railway yard are certainly highly responsible. Inspite of it, the appellant exhibited his irresponsibility by absconding himself from duty on 15.03.1983 between 08.00 hours to 16.00 hours and failed to attend even for dismounting duty at 16.00 hours, leaving Koraput Railway Yard to its fate without any guard. There is no dispute on facts that the appellant was not on his duty during the above duty hours and did not even turn up for dismounting duty. He offered explanation to the effect that he accompanied one higher officer during that period for some other duty. The enquiry officer did not believe explanation offered by the delinquent and ultimately found him guilty of the charge. Neither enquiry report is perverse nor it is based on no evidence. As Rakshak in Railway Protection Force, the appellant was doing policing duty to protect Railway Properties. Having regard to special nature of duties of the appellant as Rakshak and having regard to finding of the enquiry officer that charge against him is proved, it cannot be said that even on factual position, punishment of removal imposed on the appellant is in any way disproportionate to the proved charge. Thus, the appellant fails on all grounds. All the above grounds are only factual grounds. No question of law much less substantial question of law arises for decision in this Second Appeal. 10. In the result, the Second Appeal is dismissed, but in the circumstances, without costs. ____________________________________ SAMUDRALA GOVINDARAJULU,J. Date: 07.04.2010. HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU S.A. NO.69 OF 2006 Date:07.04.2010. Gk. [1] (1987) 4 Supreme Court Cases 611 [2] (1994) 2 Supreme Court Cases 537 [3] AIR 1996 Supreme Court 484(1) [4] AIR 1997 Supreme Court 3387 [5] (2001) 2 Supreme Court Cases 386 [6] (2008) 5 Supreme Court Cases 155 [7] (2008) 5 Supreme Court Cases 569 [8] 2006 (6) ALD 254 (DB) [9] 2009 (4) ALD 168 (DB) [10] (2008) 9 Supreme Court Cases 161 [11] AIR 1994 Supreme Court 216 [12] AIR 1994 Supreme Court 215 [13] AIR 1999 Supreme Court 3368 [14] 2002 (3) ALT 424 [15] 2002 (3) ALT 422 [16] (1990) 4 Supreme Court Cases 3 [17] 2003(3) Central Administrative Tribunal (Mumbai Bench) 112 [18] 2003(3) Central Administrative Tribunal (Bangalore Bench) 117 [19] ATR 1992 (1) C.A.T., 85 [20] 1994 (1)ALT 208 [21] Writ Appeal No.625 of 2007 of this High Court (Unreported decision) [22] Writ Petition No.6021 of 1999 of this High Court (Unreported decision)