AJN 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4252 OF 2008 Shri Manik S. Mali, Age : 38 years, Presently residing at C-12, Room No.101, “Gharonda”, Ghansoli, Sector No.9, New Mumbai – 400 701. ) ) ) ) .... Petitioner Versus 1 The Union of India, through the Director General, Railway Protection Force, Railway Board, Ministry of Railways, New Delhi. ) ) ) ) 2 Sr. Divisional Security Commissioner, Railway Protection Force, Mumbai Central. ) ) ) ..... Respondents Mr. M.S. Karnik for the petitioner. Mr. Chetan Agrawal for respondents 1 and 2. CORAM : SMT. RANJANA DESAI & J.P. DEVADHAR, JJ. DATED : 23RD JANUARY, 2009. ORAL JUDGMENT :- (Per Smt. Ranjana Desai, J.) 1. The petitioner was working with the Railway Protection Force (for short, “RPF”) as a constable. In this petition, he has prayed AJN 2 that the order of removal from service passed in appeal on 9/4/2007 and order dated 13/11/2007 passed in revision application be quashed and set aside. 2. Facts of the case must be stated in brief. The petitioner was deputed on escort duty on 27/2/2006 in Lokshakti Express Train from Ahmedabad to Bandra Terminus station along with other RPF members. As per the standing order issued by the Railway Board, it is mandatory upon each and every member of the escort party not to move alone with arms and only to remain in group while on train escort duty. The case of the respondents is that despite the mandatory direction issued by the Railway Board, the petitioner isolated himself from the escort group and boarded in Coach No.S- 1 of the train. One lady passenger by name Smt. Sherina Khatun was occupying the ticket conductor's seat in Coach No.S-1. At about 10.00 p.m. when the train reached Nadiyad, the petitioner went and sat next to her. He misbehaved and molested her. It appears that the passengers sitting in the compartment raised a hue and cry. They called the Government Railway Police. Government Railway Police arrived in Coach No.S-1. Smt. Sherina Khatun lodged her FIR at Nadiyad Police Station and offence AJN 3 under Section 354 of the Indian Penal Code (for short, “the IPC”) came to be registered against the petitioner. 3. A copy of the FIR translated in Hindi was supplied to the petitioner. The petitioner was immediately suspended. Departmental enquiry was initiated against the petitioner. The Enquiry Officer recorded the statements of witnesses and opportunity of hearing was given to the petitioner. Based on the report submitted by the Enquiry Officer, Senior Divisional Security Commissioner imposed the penalty of removal from service on the petitioner. The petitioner carried an appeal to the Senior Chief Security Commissioner. By an order dated 9/4/2007, the appeal came to be dismissed. The petitioner carried a revision to the Director General / RPF Railway Board. By order dated 13/11/2007, the Director General / RPF Railway Board dismissed the revision petition. Being aggrieved by this order, the petitioner has approached this court. 4. We have heard learned counsel for the petitioner at some length. Learned counsel submitted that the department did not record Smt. Sherina Khatun's statement. No opportunity to cross AJN 4 examine her was given to the petitioner. The department also did not examine the passengers who claim to have seen the incident and reliance was only placed on the departmental witnesses. Learned counsel drew our attention to the statement of Mr. L.P. Thakur, T.T.E. He pointed out that Mr. L.P. Thakur has stated that Smt. Sherina Khatun told him that she was from 24, Paraganas, West Bengal and that the man in uniform had come and sat next to her and after 2 to 5 minutes, he got up and went away. He submitted that Smt. Sherina Khatun has not given any particulars about the alleged misbehaviour of the petitioner. Learned counsel submitted that while removing the petitioner from service only hearsay evidence has been relied upon. In the circumstances, the impugned order must be set aside. 5. We are not impressed by any of the submissions of Mr. Karnik, learned counsel for the petitioner. Mr. Devendranath B. Kasar, Senior Divisional Commissioner / RPF, Mumbai Central, has filed affidavit in reply. Mr. Kasar has outlined the nature of duties of the members of RPF. The prime and important duty of the members of RPF is to protect passengers travelling in trains, particularly, ladies, children and senior citizens. As per the AJN 5 standing order issued by the Railway Board, members of the escort party who are with arms have to move in groups while on train escort duty. They cannot isolate themselves. Mr. Kasar has stated that despite this mandatory order, the petitioner isolated himself from the escort party and boarded Coach No.S-1 of Lokshakti Express; sat next to Sherina Khatun, misbehaved with her and molested her. Sherina Khatun made a complaint and the passengers who were angry and agitated made a hue and cry and called Government Railway Police, who arrived in Coach No.S-1. FIR of Sherina Khatun came to be registered at Nadiyad Police Station charging the petitioner under Section 354 of the IPC. The petitioner has not filed any rejoinder, refuting the contents of Mr. Kasar's affidavit. 6. The petitioner has admitted that translated copy of the FIR was given to him. He has not disputed that Sherina Khatun's FIR was supplied to him. The petitioner was immediately suspended. Departmental enquiry was initiated against him. The Enquiry Officer recorded statements of witnesses. It is true that statement of Sherina Khatun was not recorded. Mr. Kasar has stated that the Enquiry Officer tried his level best to record her statement but she AJN 6 was not available. Absence of Sherina Khatun's statement, however, in our opinion, does not absolve the petitioner of the charge. The Enquiry Officer has recorded statements of members of the escort party who confirmed that the petitioner isolated himself from the escort party. Statement of Jagbirsingh, Assistant Sub-Inspector indicates that after the incident when the passengers raised hue and cry, the petitioner went to him and told him that some incident had taken place in the compartment and requested him to tell the people that his name is Prakash Patil and not Manik Mali. Mr. L.P. Thakur, T.T.E. has stated that the passengers told him that the petitioner misbehaved with a lady passenger and when the lady passenger was asked about it, she stated that the man in uniform came, sat next to her and after 2 to 5 minutes went away. 7. In our opinion, from the statements of all these witnesses, it is clear that the petitioner did misbehave with Sherina Khatun. If as per the standing order, the petitioner was required to move in the railway compartment along with his colleagues, there was no reason for him to enter Coach No.S-1 alone and sit next to Sherina Khatun. This conduct itself suggests that the petitioner had AJN 7 intention to misbehave with Sherina Khatun. We have no hesitation in rejecting Mr. Karnik's submission that Sherina Khatun did not give any details of the petitioner's alleged misbehaviour to Mr. L.P. Thakur, T.T.E. and, therefore, her version must be discarded. It is obvious that Sherina Khatun hesitated to give details. No woman would like to describe the manner in which her modesty was outraged. We feel that that is the reason why she did not participate in the departmental proceedings. In this case, there is no reason to discard the statements of departmental witnesses because they inspire confidence. In our opinion, the most clinching circumstance is disclosed by Mr. Jagbirsingh, Assistant Sub- Inspector, RPF. He has stated that when the passengers raised hue and cry, the petitioner went to him and told him that some incident had taken place in the compartment and requested him to tell the people that his name is Prakash Patil and not Manik Mali. This conduct militates against the petitioner's case that he is innocent. 8. Mr. Karnik, learned counsel for the petitioner submitted that the criminal court has acquitted the petitioner and, therefore, the impugned orders must be set aside. This submission must be AJN 8 rejected. It is well settled that the principles underlying appreciation of evidence adduced in a criminal case are not strictly applicable to departmental proceedings. Strict proof is not necessary to punish the delinquent in departmental proceedings. We have perused the judgment of the criminal court. The petitioner was acquitted because the witnesses turned hostile. The respondents could still proceed against the petitioner departmentally and remove him from service to secure that only people with utmost moral rectitude are allowed to work in RPF. 9. RPF is entrusted inter alia with the responsibility of protecting women and children. A very high moral standard is expected of members of RPF. They must be above suspicion. Constables of RPF found indulging in misbehaviour particularly with women must be firmly dealt with. In our opinion, the departmental proceedings were held in a fair manner. There is absolutely no flaw in the procedure adopted. Statements recorded by the Enquiry Officer substantiate the respondent's case. The impugned orders, therefore, do not merit any interference. 10. Hence, the petition is dismissed. AJN 9 [SMT. RANJANA DESAI, J.] [J.P. DEVADHAR, J.]