IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN THURSDAY, THE 18TH JUNE 2009 / 28TH JYAISHTA 1931 WP(C).No. 35268 of 2008(W) ------------------------------------- PETITIONER(S): ----------------------- N.VIJAYA RAGHAVAN, S/O.BALAKRISHNAN NAIR NARAYANI NIVAS, OLLUR PO., THRISSUR. BY ADVS.MR.PHILIP T.VARGHESE MR.THOMAS T.VARGHESE RESPONDENT(S): -------------------------- 1. RAIWAY PROTECTION FORCE REP. BY THE DIVISIONAL SECURITY COMMISSIONER, THIRUVANANTHAPURAM-14. 2. DIVISIONAL SECURITY COMMSSIONER RAILWAY PROTECTION FORCE, THIRUVANANTHAPURAM-14. 3. DEPUTY CHIEF SECURITY COMMISSIONER, RAILWAY PROTRECTION FORCE, CHENNAI. ADV. MR.B.JAYASANKAR, SC, RAILWAYS THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.35268/2008 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE MEMORANDUM OF CHARGES ISSUED TO THE DTD. 7.6.07. P2:- COPY OF THE RECORD OF THE ENQUIRY PROCEEDINGS HELD ON 6.10.07. P2(a):- COPY OF THE RECORD OF THE ENQUIRY PROCEEDINGS HELD ON 10.10.07. P2(b):- COPY OF THE RECORD OF THE ENQUIRY PROCEEDINGS HELD ON 6.11.07. P2(c):- COPY OF THE RECORD OF THE ENQUIRY PROCEEDINGS HELD ON 14.11.07. P2(d):- COPY OF THE RECORD OF THE ENQUIRY PROCEEDINGS HELD ON 17.11.07. P3:- COPY OF THE LETTER ISSUED BY THE 2ND RESPONDENT DTD. 18.12.07. P4:- COPY OF THE ENQUIRY REPORT DTD. NIL. P5:- COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT DTD. 2.1.08. [6”- COPY OF THE ORDER NI.VXP/227/153/1/06 ISSUED BY THE 2ND RESPONDENT DTD. 143.1.08. P7:- COPY OF THE MEMORANDUM OF APPEAL SUBMITTED BY THE PETITIONER TO THE 3RD RESPONDENT. P8:- COPY OF THE ORDER ISSUED BY THE 3RD RESPONDENT DTD. 26.3.08. P9:- COPY OF THE PROCEEDINGS OF THE 3RD RESPONDENT DTD. 27.2.09. R1:- COPY OF THE RELEVANT PORTION IN EXT.P2 (ENQUIRY PROCEEDINGS DTD. 4.12.07.) TRUE COPY P.S. TO JUDGE tss P.N.RAVINDRAN, J. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= W.P.(C) No. 35268 of 2008 W =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 18th day of June, 2009 JUDGMENT Heard Smt. Binitha, the learned counsel appearing for the petitioner and Sri. Jayasankar B., the learned standing counsel appearing for the respondents. 2. The petitioner, an employee of the Railway Protection Force, was proceeded against on allegations of misconduct. The charge against him was that without any valid reason, he prevented a Commercial Clerk from discharging her duty and misbehaved to her using filthy language. There are also other charges against him. After enquiry, the disciplinary authority namely, the second respondent, imposed on the petitioner the punishment of compulsory retirement from service, as per Ext.P6 order dated 14-1-2008. Aggrieved thereby, the petitioner moved the third respondent, the appellate authority, by filing Ext.P7 appeal. The appellate authority confirmed the order passed by the disciplinary authority and dismissed the appeal by Exhibit P8 order passed on 26/3/2008. Exts.P6 and P8 are under challenge in this writ petition. 3. The learned counsel for the petitioner contends relying on the W.P.(C) No. 35268/08 2 decision of the Apex Court in Chairman, Disciplinary Authority, Rani Lakshmi Bai Kshetriya Gramin Bank V. Jagdish Sharan Varshney and others ((2009) 4 SCC 240) that the appellate authority has not independently considered the various contentions raised by the petitioner and that the appellate authority has without giving reasons, confirmed the order passed by the disciplinary authority. The learned counsel appearing for respondents submits that the appellate authority has applied its mind to the relevant facts and findings in the enquiry report and has arrived at the conclusion that the order of compulsory retirement does not warrant interference. 4. I have considered the submissions on either side. The operative portion of Ext.P8 reads as follows:- “I have gone through the appeal and connected records. I find that the E.O. has submitted his findings only after careful examination and after conducting a detailed enquiry duly observing all the formalities. With regard to the charge of misbehaviour with the lady parcel clerk, while she was performing her duty, it is proved beyond reasonable doubt, by the E.O. during the course of enquiry. While on sick list, it is not known why the appellant went to the parcel office and interrupted the working of the lady parcel clerk, misbehaved with her using obscene language and the same could not be defended by the appellant during the course of enquiry. Such an Act by a member of the disciplined force is unpardonable. With regard to the charge of repeated minor misconducts, the appellant, in his short span of service, has W.P.(C) No. 35268/08 3 remained absent unauthorizedly for long periods, which reveals his callousness. I therefore hold him guilty of the charge. In the end the appellant has pleaded for mercy stating about his family circumstances and also about his remaining years of service. However, I feel that he does not deserve any sympathy as he has been punished repeatedly for misconducts which reveal his lack of devotion to duty. He has neither brought out any fresh points/facts to consider his appeal. I do not want to interfere with the penalty imposed, as I feel it is commensurate with the gravity of offence committed.” 5. A reading of Ext.P8 order indicates that the appellate authority has not independently considered the various grounds raised by the petitioner in Ext.P7 appeal with reference to the evidence adduced in the enquiry and the findings in the enquiry report. The appellate authority has also not stated the reasons for concurring with the disciplinary authority. In my opinion, the appellate authority ought to have, even while confirming the order of the disciplinary authority, considered the various contentions raised by the petitioner and taken a decision on the various points raised by him and passed an order giving reasons in support of his conclusions. That has not been done in the case on hand. I am therefore persuaded to agree with the learned counsel for the petitioner that the appellate authority has failed to exercise the jurisdiction vested in it. In the result, the writ petition is allowed, Ext.P8 is quashed and the third respondent is directed to reconsider Ext.P7 appeal and pass orders W.P.(C) No. 35268/08 4 thereon after affording the petitioner a reasonable opportunity of being heard. The appellate authority shall pass an order giving reasons in support of its conclusions and after orders are passed, communicate a copy thereof to the petitioner. The contentions of the petitioner are kept open. P.N.RAVINDRAN, JUDGE. mn.