1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 27.09.2011 CORAM: THE HON'BLE MR.JUSTICE S.MANIKUMAR W.P.(MD)No.11044 of 2011 M.Venkatachalam .. Petitioner Vs. 1.Union of India rep. By The Chief Security Commissioner, Railway Protection Force, Southern Railway, MMC, Chennai-3. 2.The Divisional Security Commissioner, Railway Protection Force, Trichirappalli Division, Southern Railway, Trichirappalli Junction. 3.The Inspector, Railway Protection Force, Golden Rock, Trichirappalli-4. .. Respondents PRAYER: Writ Petition is filed under Article 226 of the Constitution of India, praying for the issuance of a Writ of Certiorarified Mandamus to call for the original records pertaining to quash the impugned memorandum No.SXT/P.227/M.V/11 dated 07.03.2011 issued by the second respondent and the consequential proceedings, further direct them to grant such other suitable relief that may deem fit and proper. For Petitioner : Mrs.T.Banumathy For Respondents : Mr.S.Manohar Standing Counsel for Railways ORDER Seeking to quash the continuation of a disciplinary proceeding, by the impugned memorandum dated 07.03.2011 issued by the Divisional Security Commissioner, Railway Protection Force, Trichirappalli Division, Southern Railway, the petitioner has filed the present writ petition. 2.Pleadings disclose that he was appointed as a Constable in Railway Protection Force, with effect from 01.08.1986 and for an act of misconduct viz., unauthorized leave for 79 days, the petitioner has been removed from service. However, under the orders of the Director General/Railway Protection Force, Railway Board dated 16.10.2001, on the review petition, submitted by him, the petitioner has been taken back to service, in February 2002. Pursuant to which, disciplinary proceedings were initiated against the petitioner, under Rule 153 of the Railway Protection Force Rules 1987. https://hcservices.ecourts.gov.in/hcservices/ 2 3.Being aggrieved by the same, the petitioner has filed writ petition in W.P.No.8132 of 2002 on the file of this Court. This Court, granted an order of interim stay in W.P.MP.No.11124 of 2002 and finally disposed of the writ petition, on 23.09.2011, with a direction to continue the enquiry, in respect of the abovesaid charges. 4.It is case of the petitioner that, in respect of the very same allegations, a case in Cr.No.1 of 1999 under the Railway Properties (Unlawful Possession) Act, was registered against him and after trial, he was acquitted by the learned Judicial Magistrate No.2, Trichirappalli. Thereafter, the Divisional Security Commissioner, Railway Protection Force, Trichirappalli Division, the second respondent dropped the third charge from the original charge memorandum dated 22.02.2002. However, in respect of other two charges, disciplinary proceedings, have been continued. 5.Assailing the correctness of the impugned charge memorandum dated 07.03.2011, the petitioner has contended that when he is kept under supernumerary post, pursuant to a report of the Medical Board, proceeding against him departmentally, is nothing but a malafide and arbitrary action. It is also the further contention of the petitioner that there is no need to proceed against the petitioner, after acquittal by the learned Judicial Magistrate No.2, Trichirappalli. According to him, when charge No.3 is dropped by the second respondent, then the other charges 1 & 2 also have to be dropped. He has also contended that after a period of 12 years, if disciplinary proceedings are allowed to be continued, then it would cause prejudice. In abovesaid circumstances, he has prayed to set aside the impugned memorandum dated 07.03.2011 and pass appropriate orders. 6.Mr.S.Manohar, learned Standing Counsel, who took notice, for the Railways submitted that pursuant to the decision of this Court, passed, in W.P.No.8132 of 2002 dated 23.09.2010, disciplinary proceedings have been continued and that there is no manifest illegality, warranting interference. He also submitted that the petitioner has also participated in the enquiry proceedings and once the petitioner has acquiesced to the disciplinary proceedings, then it is not open to him to challenge the charge memorandum. He prayed for dismissal of the writ petition. 7.Heard the learned counsel for the parties and perused material on record. 8.As stated supra, the petitioner has taken unauthorised medical leave for a period of 79 days and for that, he was issued with a charge memo and removed from service, against which, he has preferred an appeal and review petition, before the Railway Board. Considering the averments and points raised in the review petition submitted by the petitioner, the Director General of Police, Railway Protection Force, while setting aside the order of removal dated 16.10.2001 and other orders passed by the statutory authorities as stated supra, directed reinstatement of the petitioner in service. Before taking him back to service, the Director General of Police, Railway Protection Force, has directed the petitioner to be sent before the Medical Board to get a https://hcservices.ecourts.gov.in/hcservices/ 3 fitness certificate from the Board to ascertain whether to continue him as a member of the Railway Protection Force. After reinstatement of the petitioner, charges have been framed under Rule 153 of the Railway Protection Force Rules 1987 and they are as follows: “Charge: Shri.M.Venkatachalam, the then Constable 51/DSL/GOC is charged for misconduct, failure to maintain absolute integrity and discipline as a member of Force in that- i)He had given room for initiating a criminal charge i.e RP(UP) Act. A case against him vide DSL/GOC-OP Cr.NO.1/99, while working as Constable at Diesel Shed/GOC/OP. ii)He had indulged in stealing of Railway materials from Diesel Shed/Golden Rock and disposing the same in the old iron shop owned by Chinnan-A-2 in DSL/GOC-OP RP(UP) Crime No.1/99 for monetary gain, while working as a Constable in DSL/GOC-OP. By this act of ignominy he is the most unbecoming of a member of force. iii)Shri.M.Venkatachalam, the then Constable 51/DSL/GOC had refused to sign the confessional statement recorded by Sri.R.Gnanasekaran, the then Inspector RPF/GOC Post now CBE Post (PGT Divn.) and proved himself to be not amenable to discipline. Thus Sri.M.Venkatachalam, the then Cons. has violated rule 146.4 of RPF Rules, 1987 and conducted himself in a manner which brought discredit to the force and thereby the most unbecoming of a disciplined force. Hence, the charge.” 9.Pleadings further disclose, that the prosecution, levelled against the petitioner, has ended in acquittal by a judgment in C.C.No.538 of 1999, dated 28th August 2007. Thereafter, the Medical Board which examined the petitioner on 28.01.2003, found him unfit and subsequent to the same, in the proceedings of the Divisional Security Commissioner, Railway Protection Force, Trichirappalli Division, dated 13.01.2011, the petitioner has been treated as having been charged against a supernumerary post, as Constable with effect from 21.10.2010, with the approval of Chief Security Commissioner. 10.When the petitioner prayed to quash the disciplinary proceedings, in W.P.No.8312 of 2002, the same has been disposed of, by an order dated 23.09.2010, with a direction to the respondents therein to continue the enquiry, in respect of the charge memorandum dated 22.02.2002. However, taking into consideration, the acquittal of the petitioner in the criminal case registered in Cr.No.1 of 1999 under the Railway Properties (Unlawful Possession) Act, the Divisional Security Commissioner, Railway Protection Force, Trichirappalli Division, has dropped charge No.3 from the disciplinary proceedings initiated on 22.02.2002. The third charge framed as against the petitioner and dropped by the said authority, is extracted hereunder: “iii)Shri.M.Venkatachalam, the then Constable 51/DSL/GOC had refused to sign the confessional statement recorded by https://hcservices.ecourts.gov.in/hcservices/ 4 Sri.R.Gnanasekaran, the then Inspector RPF/GOC Post now CBE Post (PGT Divn.) and proved himself to be not amenable to discipline.” 11.Pursuant to the directions issued by this Court, a revised charge memorandum dated 07.03.2011 has been issued by the Divisional Security Commissioner, Railway Protection Force, Trichirappalli Division and it reads as follows: “SOUTHERN RAILWAY No.SX1/P.227/M.V/11 Office of the DSC/RPF/TPJ, Dated 07.03.2011. MEMORANDUM Consequent on the judgement of Hon'ble High Court of Judicature at Madras dated 23.09.1010 and in continuation of DSC/MAS charge sheet No.M/XP22/75/2002 dated 22.02.2002 issued under u/r 153 of RPF Rules-198/10 Shri.M.Venkatachalam, Cons.No.20/GPD now at NGT, shri.A.Parandamaiah, IPF/GOC is nominated as E.O to enquire into the following charges 1 & 2 in place of Shri.S.Manickavasagam, IPF/DBQ since the constable is now working as NGT under SNP post: 1.He had given room for initiating a criminal charge (i.e) RP(UP) Act case against him vide DSL/GOC (OP) Cr.No.1/99 while working as constable at Diesel Shed/GOC O.P. 2.He had indulged in stealing of Railway material from DSL/GOC (OP) and disposing the same in the old iron shop owned by Sri.Chinan, A-2 in DSL/GOC (OP) RP(UP) Cr.No.1/99 for monetary gain while working as a Constable in DSL/GOC (OP). By this act of ignominy he is the most unbecoming of a member of Force. Divl.Security Commissioner, Tiruchirappalli. Copy to:-CSC/MAS for kind information, please. do- Sr.DSC/MAS for kind information, please. do- IPF/GOC & Sri.M.Venkatachalam, Cons.No.20/GPD now at NGT as SNP Constable through SPP/NGT.O.O.File & PCP.” 12.Material on record further discloses that on 21.03.2011, the Inspector/RPF/GOC has sent a letter in GOC/40/DAR/MV/2011, advising the petitioner to attend the DAR enquiry and in response to the same, the petitioner, has also appeared and made a representation to the effect that Rule 153 cannot be invoked, against him, as he was not an enrolled member of RPF, and in response to the said representation, the Divisional Security Commissioner, RPF/Trichirappalli, has sent a reply in proceeding No.SXT.227/M.V/11, dated, 08.04.2011, to the petitioner https://hcservices.ecourts.gov.in/hcservices/ 5 stating that the petitioner, who is under the rolls of RPF, is governed by the Rules and Regulations of RPF Act-1957, till his absorption in some other department of railways is ordered. Material on record further discloses that on 18.04.2011, the petitioner has attended the enquiry. The details of the questions and answers recorded in the enquiry are reproduced hereunder: “ Proceedings of DAR Enquiry into the charges leveled against Sri.M.Venkatachalam Con/SNP/RPF/NGT conducted on 18.04.2011 at the Office of the IPF/TVR E.O :Sri.A.Parandhamaiah, IPF/GOC Delinquent:Sri.M.Venkatachalam, Con/SNP/RPF/NGT Q.No.1:Do your received the DSC/TPJ lr.no.SXT/P.227/M.V./11 dated 08.04.2011 regarding the clarification the Member of the Force? Ans :Yes, I have received the letter. Q.No.2:Do you understand the meaning of the letter? Ans :Yes, I understood. Q.No.3:Did you receive the charge sheets under Rule-153 of RPF Rule vide DSC/MAS Lr.No.M/XP/227/S/2002 dated 22.02.2002? Ans :Yes, I have received the charge sheet and Iunderstood the contents of the same. Q.No.4:Did you receive the Memorandum No.SXT/P.227/M.V.11 dated 07.03.2011 issued by DSC/TPJ? Ans :No, I have not received the above Memorandum. Q.No.5:Do you plead guilty of the charge sheet or not? Ans :I do not plead guilty. https://hcservices.ecourts.gov.in/hcservices/ 6 Q.No.6:Do you like to engage a Friend to assist you in the DAR enquiry? Ans :Yes Q.No.7:Did you furnish the name of the Friend you like to engage for this enquiry? Ans :I am contemplating to engage a Friend. Hence, I request 20 days time to furnish the name of the Friend. Q.No.8:Did you want any documents connected to this enquiry? Ans :Yes, I want all the documents including the charge sheet as I have filed the same before the Hon'ble High Court/Chennai in the year 2002 for restraining the DAR proceedings. On the request of the Delinquent the enquiry is posted to 11.05.2011. In the meantime, the delinquent has to furnish the name of the Friend to enable to arrange his presence on the date of the enquiry. Rear over explained and accepted as correct. (Sri.A.Parandhamaiah) IPF/GOC. & E.O (M.VENKATACHALAM) Con/SNP/RPF/NGT & Delinquent” 13.When the enquiry was held on 08.07.2011 on the office of IPF/VRI, the petitioner has participated in the enquiry, denied the charges and requested the enquiry officer to postpone the enquiry date. Proceedings of the DAR enquiry into charges leveled against Shri.M.Venkatachalam, Cons.136/SNP/NGT-OP conducted on 08.07.2011 at the office of IPF/VRI by Shri.R.Sivakumar, IPF/VRI and E.O. PRESENT: Shri.R.Sivakumar, IPF/VRI and E.O Shri.M.Venkatachalam, Cons.136/SNP/NGT-OP EXAMINATION BY THE E.O Q.No.01:DSC/TPJ vide Memorandum No.SXT/P.227/ M.V/11, dt.06.06.2011, has nominated me Shri.R.Sivakumar, IPF/VRI as enquiry officer to enquire for the charges leveled against you. Do you have any objection to conduct the enquiry by me? Ans :No https://hcservices.ecourts.gov.in/hcservices/ 7 Q.No.02:Did you receive the charge sheet under Rule 153 vide DSC/MAS Lr.No.XP/227/5/2002, dt.22.02.2002? Ans :Yes Q.No.03:Do you understand the charges levelled against you? Ans :Yes, I understand the charges leveled against me. Q.No.04:Do you plead guilty of the charge sheet or not? Ans :I do not plead guilty. Q.No.05:Do you need to engage any friend? Ans :Yes. Q.No.06:Can you furnish the name of the friend you like to engage for the enquiry? Ans :I would like to engage Shri.G.Nedunchelian, HC.178/CG-OP/TPJ. Q.No.07:Have you taken the consent from Shri.G.Nedunchelian, HC.178/CG-OP/TPJ to act as friend in this enquiry? Ans :Yes Q.No.08:Did you receive DSC/TPJ Lr.No.SXT/P.227/M.V/IT, Dt 06.06.2011? Ans :Yes Q.No.09:Do you want any documents connected to this enquiry? Ans :yes, I want all the documents including the charge sheet as I have filed the same before the Hon'ble High Court/Chennai for restraining DAR proceedings. On the request of the delinquent the enquiry is posted to 19.07.2011. In the meantime, the delinquent has to furnish the consent letter of the friend and to be present on the day of the next enquiry. Read over understood and accepted as correct. Shri.R.Sivakumar, Shri.M.Venkatachalam IPF/VRI& E.O Cons.136/SNP/NGT OP (Delinquent) 14.Reply of the Divisional Security Commissioner, Tirichirappalli further discloses that the petitioner is still under the rolls of RPF, and not been absorbed in any other department of Railways. In such circumstances, it is open to the second respondent to continue the disciplinary proceedings, as directed by this Court in W.P.M.P.No.11124 of 2002 in W.P.No.8312 of 2002 dated 23.09.2010. Though the petitioner has been detailed as medically unfit, treating him in a supernumerary post, taking into consideration, the physical condition, he has not been absorbed in any other department and therefore continues to be a member of the Railway Protection Force. Acquittal in Cr.No.1/99 does not preclude the disciplinary/appointing authority to continue the disciplinary proceedings. It is to be noted that acquittal has been made on 28.08.2007 and despite the same, this https://hcservices.ecourts.gov.in/hcservices/ 8 Court passed an order in W.P.M.P.No.11124 of 2002 in W.P.No.8312 of 2002 dated 23.09.2010, directing continuation of the disciplinary proceeding. After the acquittal, Divisional Security Commissioner, Railway Protection Force, Trichirappalli Division/ the second respondent has dropped the third charge, as stated supra. In view of the above, continuation of the disciplinary proceedings, as per the directions of this Court stated supra, cannot be said to be manifestly illegal, arbitrary or violative of the principles of natural justice. Having accepted to participate in the enquiry, with the assistance of a friend, it is not open to the petitioner to prefer another writ petition, on the same cause of action. The attempt to quash the same charges, by filing another writ petition, after the disposal of the earlier litigation, which has reached a finality, is not approved, as successive writ petition on the same cause of action is liable to be rejected. I do not find any manifest illegality warranting interference. 15.Hence, this writ petition is dismissed. Consequently, connected M.P.No.1 of 2011 is also dismissed. No costs. Sd/- Assistant Registrar(RTI Act) /TRUE COPY/ Sub Assistant Registrar To 1.The Chief Security Commissioner, Union of India,Railway Protection Force, Southern Railway, MMC, Chennai-3. 2.The Divisional Security Commissioner, Railway Protection Force, Trichirappalli Division, Southern Railway, Trichirappalli Junction. 3.The Inspector, Railway Protection Force, Golden Rock,Trichirappalli-4. +1cc to Mrs.T.Banumathy, Advocate SR.No.33908 +1cc to Mr.S.Manohar, Advocate SR.No.33773 W.P.(MD)No.11044 of 2011 27.09.2011 vs PA/21.10.2011/8P/6C https://hcservices.ecourts.gov.in/hcservices/