* THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN + W.P.No.13221 OF 1999 % Dated 07-07-2006 # M. Gopalakrishna. …. Petitioner Vs. $ Divisional Security Commissioner, Railway Protection Force, S.C. Railway, Guntakal and two others. …. Respondents ! Counsel for the Petitioner: Mr. J.M. Naidu ^ Counsel for the S.C. for Railways: Mr. G.S. Sanghi <GIST: > HEAD NOTE: ? Cases referred [1] AIR 1999 SC 1416 2 2001(4) ALD 535 (DB) 3 AIR 1999 SC 3367 4 AIR 1994 SC 215 5 1995(1) ALT 744 6 2002(3) ALT 422 7 Judgment in W.P.No. 6021 of 1999 dated 08.07.2005 8 Judgment in W.P. No. 20448 of 1997, dated 20.06.2000 9 Judgment in W.A.No. 1659 of 2000 dated 13.11.2002 10 2005(6) Supreme 612 112005(7) Supreme 111 12 2005(6) Supreme 183 13 2005(6) SCC 76 14 2006(2) Supreme 369 15 2006(1) Supreme 633 16 Judgment in W.P.No. 18217 of 2004 dated 05.11.2004 17 W.A.No. 952 of 1998 dated 03.02.2005 18 AIR 1963 SC 779 19 AIR 1969 SC 966 20 AIR 1996 SC 484 21 1997(7) SCC 463 22 (2001) 2 SCC 386 23 2004(8) SCC 218 24 (2006) 3 SCC 790 25 (2005) 10 SCC 84 26 (2006) 2 SCC 255 27(2005) 12 SCC 182 28(2006) 1 SCC 589 29(2004) 7 SCC 574 30Judgment in W.P.29705 of 1999 dated 26.11.1999 31judgment in W.P.No.18660 of 1998 dated 2.11.2000 THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION NO. 13221 OF 1999 ORDER: Questioning the proceedings of the 1st respondent dated 20.01.1995, imposing on the petitioner the punishment of removal from service, as confirmed in proceedings dated 16.04.1996 of the 2nd respondent and further confirmed in the revisional order dated 5/6-01.1999 of the 3rd respondent, the present writ petition is filed. Facts, to the extent necessary, are that the petitioner was appointed as a Railway Protection Force (for short ‘R.P.F’) Constable on 26.08.1985. According to the petitioner, after completion of duty on 30.09.1994, and on coming to know that his wife was behaving abnormally, he went to his native place. Petitioner contends that he gave a ‘Security Control Message’ on 02.10.1994 at about 5.30 A.M. seeking ten days leave, since his wife had expired. Petitioner submits that his father-in-law gave a false complaint against him and his parents in C.K. Dinne police station and that he was arrested on 02.10.1994 itself. The 1st respondent issued a charge sheet on 09.11.1994 and appointed Sri K. Neelakantha Rao, Inspector of R.P.F. as the enquiry officer. The enquiry was first held on 18.11.1994 and on 06.12.1994 the petitioner’s preliminary statement was recorded in the Central Prison, Cuddapah, consequent on permission being accorded by the Superintendent of Central Prison, Cuddapah dated 26.11.1994. Petitioner would contend that his statement was taken under duress, that the enquiry was conducted on 16.12.1994 and Sri K. Hussainappa, Sub-Inspector, R.P.F. and Sri K. Subbarayudu, Assistant Sub-Inspector of Local Police were examined as prosecution witnesses. The enquiry officer submitted his report on 23.12.1994 holding that the charges levelled against the petitioner was proved. The petitioner was issued showcause notice dated 26.12.1994 to which he submitted his explanation. The 1st respondent, thereafter, passed the order of removal from service vide proceedings dated 20.01.1995. The appeal preferred by the petitioner was rejected by the 2nd respondent and the order of punishment was confirmed vide proceedings dated 16.06.1996. During the pendency of disciplinary proceedings, the petitioner was acquitted in S.C.No.80 of 1995 on the ground that there was no incriminating material that he had ill-treated and harassed his wife. Enclosing the copy of the judgment in S.C.No. 80 of 1995 the petitioner preferred the revision petition to the 3rd respondent which was rejected by proceedings dated 5/6-01.1999. In the counter-affidavit filed by the Divisional Security Commissioner, it is, inter alia, stated that the petitioner, after performing night duty on 30.09.1994/01.10.1994, left headquarters without obtaining permission from the Sub-Inspector, Railway Protection Force on coming to know that his wife was behaving abnormally. The respondent denied the allegation that the petitioner had given a “Security control message” on 02.10.1994 seeking ten days leave on the ground that his wife had expired. According to the respondents, the petitioner only informed about his wife having committed suicide to the Sub-Inspector, Railway Protection Force through security control. The petitioner did not ask for leave and had not sent a telegram or a leave application. It is stated that the petitioner was arrested on 22.10.1994 in Cr.No. 59 of 1994. The Disciplinary authority placed the petitioner under suspension and issued a major penalty charge sheet under rule 153 of RPF Rules, 1987. It is stated that an enquiry officer was appointed to conduct a regular departmental enquiry as per rule 153.5 of the RPF Rules, 1987 and that the enquiry officer initially fixed the date of enquiry as 18.11.1994. It is stated that after obtaining permission from the Superintendent, Central Prison, Cuddapah, the departmental enquiry was conducted on 06.12.1994 and the preliminary statement of the petitioner was recorded, by the enquiry officer, in the central prison. Respondent denies the allegation that the petitioner’s statement was taken under duress, and submits that the petitioner had stated in the preliminary enquiry that he had no objection to attend the enquiry. The petitioner is said to have submitted a representation on 06.12.1994 engaging the services of his friend Sri M. Sreeramulu as his Defence Counsel. It is stated that the enquiry officer examined two prosecution witnesses, Sri K. Subbarayudu, Asst.Sub- Inspector of Police C.K. Denne Police Station and Sri K. Hussainappa, Sub-Inspector, RPF, Adoni and they were subjected to cross examination by the petitioner. Respondents would submit that the petitioner was removed from service, for leaving headquarters without permission and remaining absent unauthorisedly and not for the criminal case, since the police case was a totally separate issue. According to the respondents, the petitioner was dealt with for the charge of leaving headquarters on 01.10.1994 without permission and for remaining absent unauthorisedly from 02.10.1994 and subsequently getting involved in a police case and since the charge of leaving headquarters without permission and remaining absent unauthorisedly was held to be proved in the departmental enquiry the petitioner was removed from service. It is stated that the petitioner had availed the opportunity of cross-examining the prosecution witnesses in the departmental enquiry conducted against him. It is admitted that the disciplinary enquiry was conducted while the petitioner was in judicial custody. It is stated that the petitioner expressed his willingness to attend the enquiry, when his preliminary statement was recorded by the enquiry officer. Respondents would submit that conducting departmental enquiry, without calling for the petitioner’s explanation, was in order and that petitioner’s acquittal in the criminal case would not preclude disciplinary action being taken against him. Respondents would deny the contention that the punishment imposed is disproportionate to the charges, since leaving headquarters without permission and absenting from duty unauthorisedly was an act of serious indiscipline in the armed forces. It is stated that since both the charges, which were levelled against the petitioner and were held proved in the departmental enquiry, were serious in nature the petitioner was removed from service. It is stated that the punishment of removal from service imposed on the petitioner by the 1st respondent, in proceedings dated 20.01.1995, was confirmed by the 2nd respondent on 16.04.1996, and again confirmed by the 3rd respondent on 06.01.1999 after carefully looking into and examining the material evidence on record. Sri J.M. Naidu, learned Counsel for the petitioner, would seek to have the disciplinary proceedings instituted against the petitioner and the punishment of removal imposed on him quashed on the following grounds. (1) The Petitioner was not paid subsistence allowance resulting in violation of principles of natural justice. Learned Counsel would place reliance on Cap. M. Paul Anthony V. Bharat Gold Mines Ltd[1] in this regard. (2) Since the petitioner had been acquitted in the criminal case, the punishment imposed on him for his involvement in a criminal case was liable to be set aside, more so since no disciplinary enquiry was held on the charges which formed the basis of the criminal case and the petitioner had been charged only for his involvement in a criminal case. Learned Counsel would place reliance on S.K. Ramju Vs. Regional Manager, APSRTC, Nalgonda, Nalgonda District[2] in this regard. (3) Since the allegation, that the petitioner had murdered his wife and child, weighed with the respondent authorities in imposing the punishment of removal from service and as the petitioner was acquitted of this offence in S.C.No. 80 of 1995, and no disciplinary enquiry was held to enquire into this charge, the punishment imposed on him for moral turpitude was liable to be set aside and since this was the main charge, the punishment imposed on the petitioner of removal from service was liable to be set aside. Learned Counsel would submit that for the charge, of leaving headquarters without permission and for unauthorized absence, the petitioner ought not to have been imposed the severe punishment of removal from service more so since the petitioner was in judicial custody from 02.10.1994,and the disciplinary enquiry was itself held in the Central Prison, Cuddapah. According to the learned Counsel, the petitioner could not be said to have remained unauthorizedly absent from duty, since he was required to attend duty only on the after-noon of 2nd October 1994, on which date the petitioner was arrested and illegally detained by the police. Learned Counsel would submit that, though in fact the petitioner had been arrested on 2nd October 1994, the police authorities had shown his arrest only on 22.10.1994. According to the learned Counsel, even if the police version were to be believed, absence of the petitioner from duty was only for 20 days and this coupled with the fact that the respondents themselves admit that the petitioner had informed them about his wife having committed suicide, were circumstances which warranted taking a lenient and sympathetic view. The punishment of removal from service, in such circumstances, was grossly disproportionate and was liable to be set aside. Learned Counsel would place reliance on Syed Zaheer Hussain Vs. Union of India[3], Union of India Vs. Giriraj Sharma[4], M. Krishnam Raju Asst. Technical Officer, Commercial Electronics Group, ECIL, Hyderabad V. The Electronics Corporation of India rep.,by its Managing Director, Industrial Development Area, Hyderabad[5], K. Balangi Reddy Vs. APSRTC, Hyderabad[6], D. Ramulu Vs. The Government of India, rep, by its Director General Railway Protection Fore, Rail Bhavan, New Delhi[7], K. Rambabu Vs. Union of India, rep., by its Director General, Railway Protection Force, Rail Bhavan, New Delhi[8], and The Dy. Chief Security Commissioner, Railway Protection Force, South Central railway, Secunderabad Vs. Jahangir[9], in this regard. Sri G.S. Sanghi, learned Standing Counsel for the railways, on the other hand, would submit that failure to pay subsistence allowance was of no consequence, since it is not even the case of the petitioner that prejudice had been caused to him thereby or that he was precluded from participating in the departmental enquiry on that score. Learned Standing Counsel would submit that, in the absence of prejudice being caused to the delinquent employee mere non-payment of subsistence allowance cannot vitiate an otherwise valid departmental enquiry. Learned Standing Counsel would place reliance on U.P. State Textile Corporation Ltd Vs. P.C. Chaturvedi[10] in this regard. Learned Standing Counsel would submit that the Railway Protection Force is a disciplined force wherein no form of indiscipline could be permitted and that, in such a disciplined force, leaving headquarters without permission and unauthorised absence from duty for 20 days would justify imposition of punishment of removal from service. Learned Standing Counsel would submit that, for leaving headquarters without permission and for remaining unauthorisedly absent from duty, the rules provide for imposition of punishment of removal from service, and that the punishment imposed is commensurate with the gravity of misconduct held established. Learned Standing Counsel would urge this Court to exercise restraint and submit that this Court, under Article 226 of the Constitution of India, would not substitute the punishment imposed by the disciplinary authority nor would it go into the adequacy or sufficiency of the punishment imposed. Learned Standing Counsel would place reliance on M.M. Malhotra Vs. Union of India[11], V. Ramana Vs. APSRTC[12], Indian Drugs & Pharmaceutials Ltd. Vs. R.K. Shewaramani[13], Chairman & M.D. Bharat Pet. Corpn.Ltd. Vs. T.K. Raju[14], Ram Saran V. I.G. of Police, CRPF[15], Bikshapati Virayya Vs. Union of India, rep., by General Manager, Central Railway[16] a n d The Director General Railway, Protection Force, Rail Bhavan, New Delhi: Vs. Sri Ch. Sai Babu[17]. Before examining the rival contentions, it is necessary to take note of the relevant statutory provisions in this regard. Section 9 of the Railway Protection Force Act, 1957 relates to dismissal, removal etc., of members of the Force and reads thus: 9 Dismissal, removal, etc. of members of the Force:- (1) Subject to the provisions of Article 311 of the Constitution and to such rules as the Central Government may make under this Act, any superior officer may- (i) dismiss, suspend or reduce in rank any a[a] Substituted for the word "member" by Railway Protection Force (Amendment) Ac! (60 of 1985), S. 10(20-9-85). [enrolled member] of the Force whom fie shall think remiss or negligent in the discharge of his duty, or unfit for the same; or (ii) award any one or more of the following punishments to any "[enrolled member] of the Force who discharges his duty in a careless or negligent manner, or who by any act of his own renders himself unfit for the discharge thereof, namely :- (a) fine to any amount not exceeding seven days' pay or reduction in pay scale; (b) confinement to quarters for a period not exceeding fourteen days with or without punishment. drill, extra guard, fatigue or other duty: (c) removal from any office of distinction or deprivation of any special emolument. b[b] Substituted, word "member" by Railway Protection Force (Amendment) Ac! (60 of 1985), S. 10(20-9-85). [(2) Any enrolled member of the force aggrieved by an order made under sub-section (1) may. within thirty days from the date on which the order is communicated to him, prefer an appeal against the order to such authority as may be prescribed : Provided that the prescribed authority may entertain the appeal after the expiry of the said period of thirty days if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time. (3) In disposing of the appeal, the prescribed authority shall follow such procedure as may be prescribed: Provided that no order imposing an enhanced penalty under sub-section (2) shall be made unless a reasonable opportunity of being heard has been given to the person affected by such order.] Section 17 prescribes the penalties for neglect of duty and reads thus: 17 Penalties for neglect of duty, etc:- (1) Without prejudice to the provisions contained in S. 9, every enrolled member of the Force who shall be guilty of any violation of duty or wilful breach or neglect of any rule or lawful order made by a superior officer, or who shall withdraw from duties of hi.s office without permission, or who, being absent on leave, fails, without reasonable cause, to report himself for duty on the expiration of the leave, or who engages himself without authority for an\ employment other than his duty as an enrolled member of the Force, or who shall be guilty of cowardice may be taken into Force custody and shall, on conviction, be punished with imprisonment which may extend to one year. (2) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, an offence punishable under this section shall be cognizable and non- bailable. (3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, the Central Government may invest Assistant Inspector-General, Senior Commandant or Commandant with the powers of a Magistrate of any class for the purpose of inquiring into or trying any offence committed by an enrolled member of the Force and punishable under this Act, or any offence committed by an enrolled member of the Force against the person or property of another member of the Force: Provided that- (i) when the offender is on leave or absent from duty: or (ii) when the offence is not connected with the offender's duties as an enrolled member of the ' Force; or (iii) when it is a petty offence even if connected with the offender's duties as an enrolled member of the Force: or (iv) when, for reasons to be recorded in writing, it is not practicable for the Commandant invested with the powers of a Magistrate to inquire into or try the offence, the offence may, if the prescribed authority within the limits of whose jurisdiction the offence has been committed so requires, be inquired into or tried by an ordinary criminal Court having jurisdiction in the matter. (4) Nothing contained in this section shall be construed to prevent any enrolled member of the Force from being prosecuted under any other law for any offence made punishable by that law, or for being liable under any such law to any other or higher penalty or punishment than is provided for such offence by this section: Provided that no person shall be punished twice for the same offence. In exercise of the powers conferred under Section 21 of the Railway Protection Act, 1957, the Railway Protection Force Rules, 1957 were made. Chapter 11 of the said Rules relates to discipline and conduct. Rule 143 thereunder relates to responsibilities of a member of the Force during suspension and reads as under: 143. Responsibilities of member of the Force during suspension. 1. A member of the Force shall not, by reason of his suspension, cease to be a member of the Force during the period of his suspension. The powers vested in hi as such member shall be in abeyance but he shall be subject to the same responsibilities and discipline and penalties to which he would have been subject if he went on duty. 2. Every member of the Force shall during the period of his suspension stay at his headquarters or at such place which may be specified by the disciplinary authority and shall present himself daily for attendance to the authority nominated by the disciplinary authority; Provided that the disciplinary authority may, for special reasons, grant permission in writing to the member to leave the station for a specified period and on revocation of such suspension the period of such absence shall be regularized as kind of leave due in case the period of suspension is treated as period spent on duty. 3. An enrolled member of the Force under suspension shall deposit his arms and accountrements with the Quarter Master or such officer as may be specified by the disciplinary authority. 4. A member of the Force under suspension shall not wear his uniform nor shall he be employed on ground duty nor on any such duty which might entail exercise of his power as a member of the Force nor shall he be issued arms and ammunition. 5. A member of the Force under suspension shall be allowed reasonable facilities for the preparation of his defence in connection with the charges leveled against him. Rule 146 relates to the code of behaviour for members of the Railway Protection Force. Rule 146(4) reads thus: “Discreditable conduct: No member of the Force shall act in any manner prejudicial to discipline or conduct himself in such a manner which is reasonably likely to bring discredit to the reputation of the Force” Rule 147 enumerates the offences relatable to duties of enrolled members, and thereunder the commission of any of the act or acts by an enrolled member of the Force, enumerated therein, shall render him liable for punishment under Section 9 or Section 17 or both. Clause vi of Rule 147 reads thus: “Absenting himself without proper intimation to his controlling authority or without sufficient cause overstaying leave granted to him or failing without reasonable cause to report himself for duty on the expiry of such leave.” Chapter 12 relates to disciplinary and penal punishments and Rule 148 thereunder gives a description of the punishments. Rule 149 relates to other minor punishments. Rule 153 prescribes the procedure for imposing major punishments. Rule 155 relates to determination of punishments and Rule 156 to imposing of punishment of dismissal etc. Rule 155 and156 read thus: 155 Determination of punishment:- In determining the punishment, the character, previous bad record and punishment of party charged shall not be taken into consideration unless in a case where they are made subject-matter of a specific charge in the proceeding itself. Offences connoting moral turpitude shall be carefully distinguished from smaller lapses of conduct. It is essential that the punishment shall be inflicted keeping in view the nature of duties expected from the member of the Force and the misconduct by him. 156 Imposing of punishment of dismissal, etc:- Before coming to any lower punishment, the disciplinary authority with a view to ensuring the maintenance of integrity in the Force shall consider the award of punishment of dismissal or removal from service to any member of the Force in the following cases, namely : (a) Dismissal; (i) conviction by a criminal court : (ii) serious misconduct or including in committing or attempting or abetting an offence against railway property ; (iii) discreditable conduct affecting the image and reputation of the Force ; (iv) neglect of duty resulting in or likely to result in loss to the railway or danger to the lives of persons using the railways; (v) insolvence or habitual indebtedness ; and (vi) obtaining employment by concealment of his antecedents which would ordinarily have debarred him from such employment. (b) Removal from Service : (i) any of the misconduct for which he may be dismissed under Cl. (a) above ; (ii) repeated minor misconducts ; (iii) absence from duty without proper intimation or overstay beyond sanctioned leave without sufficient cause. FAILURE TO PAY SUBSISTENCE ALLOWANCE: ITS EFFECT ON THE DEPARTMENTAL ENQUIRY: In CAPT.M.PAUL ANTHONY1, the Supreme Court held thus:- “……..EXERCISE of right to suspend an employee may be justified on the facts of a particular case. Instances, however, are not rare where officers have been found to be afflicted by a "suspension syndrome" and the employees have been found to be placed under suspension just for nothing. It is their irritability rather than the employee's trivial lapse which has often resulted in suspension. Suspension notwithstanding, non-payment of subsistence allowance is an inhuman act which has an unpropitious effect on the life of an employee. When the employee is placed under suspension, he is demobilised and the salary is also paid to him at a reduced rate under the nickname of "subsistence allowance", so that the employee may sustain himself. This court, in O. P. Gupta v. Union of India made the following observations with regard to subsistence allowance “…….There is no doubt that an order of suspension, unless the departmental enquiry is concluded within a reasonable time, affects a government servant injuriously. The very expression 'subsistence allowance' has an undeniable penal significance. The dictionary meaning of the word 'subsist' as given in Shorter Oxford 'english Dictionary, Vol. II at p. 2171 is 'to remain alive as on food; to continue to exist'. 'subsistence' means - means of supporting life, especially a minimum livelihood. " (emphasis supplied) IF, therefore, even that amount is not paid, then the very object of paying the reduced salary to the employee during the period of suspension would be frustrated. The act of non-payment of subsistence allowance can be likened to slow-poisoning as the employee, if not permitted to sustain himself on account of non- payment of subsistence allowance, would gradually starve himself to death….. “…….The provision for payment of subsistence allowance made in the service rules only ensures non-violation of the right to life of the employee. That was the reason why this court in State