IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE TWENTY EIGHTH DAY OF APRIL TWO THOUSAND AND FIVE PRESENT THE HON'BLE Mr. JUSTICE C.V.RAMULU WRIT PETITION No. 21105 of 1995 Between: K.Joseph, S/o. Venkanna, Head Constable (under orders of dismissal), Railway Protection Force, R/o Potur, Kodamanchilavari Veedhi, Tadepalligudem, West Godavari District – 534 101 ..... PETITIONER AND 1 The Director General, Railway Protection Force, Rail Bhavan, New Delhi. 2 The Chief Security Commissioner, Railway Protection Force, Rail Nilayam, Secunderabad 3 The Divisional Security Commissioner, Railway Protection Force, D.R.M's Office Compound, South Central Railway Vijayawada .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to call for records pertaining to the proceedings of the Respondent No.3 herein contained in No.B/XP.227/153/89/3, dated 15.6.1989 and consequential proceedings of the Respondent No. 2 herein contained in his Force order No.20/90 dated 10-01-1990 and further consequential Proceedings of the Respondent No.1 herein contained in No.93- SEC(E)/DAR-2/18, dated 25-10-1994, and set aside them as illegal, arbitrary, irrational, discriminatory, illogical without jurisdiction, opposed to the principles of Natural Justice and violative of Articles 14,16 and 21 of the Constitution of India and consequently direct the Respondent herein to reinstate the petitioner herein as Head Constable with all consequential benefits such as arrears of salaries, seniority and promotions etc., by the issuance of writ, order or Direction essentially in the nature of Writ of Mandamus, and pass any such other order or orders as this Hon'ble High Court may deem fit, proper and necessary in the circumstances of the case. Counsel for the Petitioner: Mr. J.SUDHEER Counsel for the Respondents: Mr. GOURI SHANKAR SANGHI, SC for Railways The Court made the following : THE HON’BLE SRI JUSTICE C.V. RAMULU WRIT PETITION No.21105 of 1995 JUDGMENT: This writ petition is filed challenging the Proceedings No.B/XP.227/153/89/3, dated 15-6-1989 of the 3rd respondent as confirmed by the 2nd respondent in Proceedings dated 10-1-1990 and further confirmed by the 1st respondent in Proceedings dated 25-10-1994. It is the case of the petitioner that he was appointed as Rakshak in the Railway Protection Force, South Central Railway in the year 1962 in open competition. He was promoted as Naik in the year 1980 and further promoted as Head Constable in the year 1983. Having regard to his meritorious and unblemished service, he got promotions from time to time. In recognition of his efficient and sincere service, several rewards were conferred on him. While so, when he was working as Head Constable at Rajahmundry, he sought leave from time to time as his health condition was deteriorating. However, later, he resumed duties and was posted at Rayanapdu. While working at Rayanapadu, a charge sheet dated 31-3-1987 was issued to him, for which he submitted an explanation. Thereafter, the 3rd respondent appointed one G.C.Naidu (since died), the then Assistant Security Commissioner, Vijayawada as Enquiry Officer. The said Enquiry Officer conducted enquiry without following the principles of natural justice, viz., failed to supply statements of three witnesses, which were recorded ex parte. Therefore, he made a representation dated 19-11-1987 to the 3rd respondent to change the Enquiry Officer G.C.Naidu because of his harsh and discourteous behaviour towards him. The 3rd respondent - Divisional Security Commissioner, Vijayawada –through his Memo dated 21-12- 1987 directed the Enquiry Officer to conduct de novo enquiry, but did not accede to his request for change of Enquiry Officer and allowed G.C.Naidu to be the Enquiry Officer. The biased attitude of the Enquiry Officer doubled in view of his representation dated 19-11-1987. This resulted in over anxiety by the said Enquiry Officer in submitting his report to the 3rd respondent without following the principles of natural justice. The Enquiry Officer found that the charges were proved. The de novo enquiry, which was conducted by G.C.Naidu is nothing but an eye wash and G.C. Naidu was prejudiced and biased against him inasmuch as he made a complaint against the latter. Basing on the report of G.C. Naidu, the disciplinary authority – 3rd respondent – by Proceedings dated 30-6-1988 ordered to remove him from service. Thereafter, he filed an appeal before the 2nd respondent – appellate authority, which was allowed on 24-10-1988 in part directing him to reinstate into service, but ordering to impose the punishment of withholding of his next increment for a period of five years without cumulative effect. Thereafter, by Proceedings dated 31-8-1988 of the 3rd respondent, he was posted at Rayanapadu and he joined duty on 4-11-1988. Further, he applied for leave on 6-2-1989 as his mother was in serious condition. On 7-2-1989 he made a representation seeking voluntary retirement as his health also deteriorated. While so, the 3rd respondent issued Proceedings dated 6-3-1989 asking him to report before the Railway Doctor, which was received by him on 15-3- 1989. Accordingly, he reported before the Railway Hospital, Vijayawada on 16-3- 1989, but the Doctors refused to treat him in the absence of Sick Memo from the Controlling Officer i.e. G.Koteswara Rao, who is also prejudicial against him. On 31- 3-1989 he made a representation requesting the 3rd respondent to give suitable posting for reporting duty and also bringing to his notice about the vindictive attitude of M/s.G.Koteswara Rao and G.C. Naidu. In the meanwhile, he received a charge sheet dated 17-3-1989 issued by G.C. Naidu on 27-3-1989 alleging that he had collected amounts from various persons by falsely promising that he would secure jobs to them in the Railways and he was unauthorizedly absent from duty. He made a representation on 31-3-1989 seeking to supply the copies of the statements of various persons mentioned in the charge sheet. He was supplied with copies of statements on 10-4-1989. However, on 12-4-1989 G.C.Naidu appointed himself as Enquiry Officer and directed him to attend the enquiry on 17-4-1989 i.e. even before he submitted his reply to the above charge sheet. Immediately, by Proceedings dated 19-4-1989 the Enquiry Officer informed him that the enquiry had been conducted by examining the prosecution witnesses and the enquiry was closed as far as the prosecution is concerned and directed him to submit his explanation/defence statement within 10 days. Thereafter, he made several representations to the Enquiry Officer and also the 3rd respondent stating that the charges are false. However, the Enquiry Officer submitted his report dated 3-6-1989 finding that the charges were proved. The 3rd respondent by Proceedings dated 15- 6-1989 dismissed him from service. The appeal and revision filed before respondents 2 and 1 respectively against the said order of the 3rd respondent were rejected. Aggrieved by the same, this writ petition is filed. A detailed counter affidavit has been filed on behalf of the respondents denying the allegations made by the petitioner and stating that the charges proved against the petitioner are grave in nature and the impugned orders do not deserve any interference at the hands of this Court. Learned counsel for the petitioner stated inter alia that the whole of the enquiry was biased since the Enquiry Officer – G.C. Naidu - was ill disposed of against the petitioner. He was the person, who conducted the enquiry in the earlier disciplinary proceedings also. At that time, the petitioner gave a complaint saying that the enquiry was not being carried on properly and impartially and sought for change of Enquiry Officer. On the complaint made by the petitioner, the 3rd respondent directed the Enquiry Officer to furnish the statements of witnesses and conduct de novo enquiry. Even at the time when G.C.Naidu was appointed as an Enquiry Officer in the present proceedings, the petitioner objected for the same, as he was biased and prejudiced against the petitioner. The Enquiry Officer himself initiated the proceedings right from the charge memo, though he is not the disciplinary authority. Therefore, the initiation of proceedings by G.C.Naidu as disciplinary authority does not arise. The 3rd respondent is the disciplinary authority and there is no power vested in G.C. Naidu to initiate proceedings right from the charge memo. Therefore, the whole of the enquiry initiated is vitiated under the law. Per contra, learned standing counsel for Railways appearing for the respondents argued that the petitioner has not given any instance of bias or prejudicial attitude of the Enquiry Officer except saying that the Enquiry Officer was biased against him. The Enquiry Officer is the disciplinary authority in this case; as such, he is vested with the power to initiate disciplinary proceedings and also to conduct enquiry by himself; therefore, the question of Enquiry Officer assuming the role of a disciplinary authority does not arise. I have given earnest consideration to the submissions made by the learned counsel on either side and gone through the entire material made available on record including the impugned Orders passed by the respondents. It is not denied by the respondents that the petitioner had put in 28 years of service and he has been promoted to various cadres including the post of Head Constable on his own merit. He was also given several rewards for the efficient service rendered by him. While so, the petitioner was issued with a charge sheet dated 31- 3-1987 and an additional charge sheet dated 4-6-1987 stating that he had absented from duty unauthorizedly from 26-1-1987 to 23-4-1987 without any information to his superiors when the permitted leave was only 8 days. Further, he reported sick at Rayanapadu Health Unit on 27-1-1987 by producing a false sick memo without any office stamp, with an intention to cover up his absence. G.C.Naidu, Assistant Security Commissioner, RPF, Vijayawada was appointed as an Enquiry Officer. When the said Enquiry Officer did not conduct the enquiry fairly, the petitioner complained to the higher authorities, who directed for de novo enquiry by furnishing the statements of witnesses recorded ex parte. In the de novo enquiry conducted, G.C.Naidu with all vengeance recommended for removal of the petitioner from service. After submitting a detailed explanation to the show cause notice issued by the disciplinary authority, the petitioner was, in fact, removed from service by Proceedings dated 30-6-1988 of the 3rd respondent. Aggrieved by the same, the petitioner preferred an appeal before the Chief Security Commissioner – 2nd respondent, who partly allowed the appeal on 24-10-1988 and directed reinstatement of the petitioner, but imposed only the penalty of stoppage of one increment for five years without cumulative effect and also treated the period from 27-1-1987 to 23-4-1987 as leave without pay and the intervening period from the date of removal from service to the date of reinstatement as ‘not on duty’ (leave without pay). Thereafter, the petitioner joined duty and made a representation on 7- 2-1989 to the 3rd respondent seeking voluntary retirement. He also submitted a detailed reminder on 20-2-1989 seeking permission to retire him voluntarily from 7- 2-1989 itself and settle his account. From 7-2-1989 onwards, the petitioner did not attend to his duty stating that he was continuously sick. For that, again a charge sheet was issued by the said G.C.Naidu styling himself as a disciplinary authority on 17-3-1989 enumerating the following charges: “ 1. He collected various amounts of money from the persons listed in the Annexure ‘A’ of charge sheet with mala fide intention and promise that he will secure jobs in RPF as Constables for the persons mentioned in the Annexure ‘A’. 2. He absented for duties from RYP unauthorizedly from 07-2-1989 till date.” Thereafter, the said G.C. Naidu issued a Proceeding dated 12-4-1989 to the petitioner describing himself as Enquiry Officer and stating that the enquiry would be conducted against the petitioner at RPF Outpost, Tadepalligudem on 17-4-1989 and instructing the petitioner to attend the enquiry without fail. For that, the petitioner addressed a letter on 16-4-1989 to the Enquiry Officer, which reads as under: “I most humbly bring to your kind notice that in violation of RPF Rules,1987, enquiry is being held against me as brought out hereunder: 1. Charge sheet was issued showing RPF Rules,1959 under Rule 44 though those rules were repealed and new RPF Rules,1987 were introduced. 2. As per your own charge sheet, I am entitled for submission of a written statement, vide para 2 appearing on page 2, whereas statements were supplied to me only on 10-4-89 and before I could read these 32 statements, on 12-4-89 enquiry was ordered. This is a clear violation of rules. 3. In my letter dated 31-3-1989, I requested for clarification about Rule 44 and Rule 153. I further represented this issue to DSC/BZA vide my letter on 11-4-89. Without clarifying these matters, enquiry was ordered ex part, violation of rules. 4. The proforma used for issuing major penalty charge shet is as per Rules 1959 under Rule 44. Is this valid on the face of New Rules 1987. This charge sheet itself becomes null and void because there are no more Rule 44 and Rules 1959 of RPF. I, therefore, submit that once again Rules may please be gone through carefully, examine the above points and kindly proceed further, strictly within the frame Rules of new RPF Rules 1987. Now, having received a defective charge sheet and facing an enquiry full of violation of Rules, I submit that I reserve my right of defending myself at the appropriate opportunity when all the procedures were adopted to in accordance with the RPF Rules,1987 – i.e. right from issuance of a proper charge sheet in proper form as per rules please.” It is not in dispute that in the earlier proceedings launched against the petitioner, G.C.Naidu, Assistant Security Commissioner, Railway Protection Force, Vijayawada was appointed as Enquiry Officer and the petitioner made a complaint against the said Enquiry Officer as to his conduct and attitude towards him, which was prejudicial in nature. It is admitted that while the earlier disciplinary proceedings were in progress, the petitioner sought for change of G.C.Naidu since he had no confidence in the said Naidu as the latter may not render justice to him and was prejudicially disposed of against him. In this connection, it is apt to extract the letter dated 7-2-1989. “I submit the following few lines for your kind consideration and orders please. I have put in 28 years of service and worked to the satisfaction of my superiors. My date of birth is 15-6-1940 and my date of appointment is 28-3-1962. During the last two years, my health has been deteriorated and my eye sight has become very poor, I am finding it difficult to discharge my duties satisfactorily and frequently I am falling sick. After 5 months sick period, Doctors also advised me to be more careful. In view of the above, I appeal to my kind Officer, to kindly discharge me from my duties and consider my request for voluntary retirement. As I am not in a position to work, my voluntary retirement may kindly be accepted with immediate effect waiting 3 months notice.” Another letter dated 20-2-1989 addressed by the petitioner to the 3rd respondent is also relevant for our purpose. It reads thus: “I most humbly beg to submit my pathetic story for the kind consideration of the venerable Officers believing that my kind Superior Officer will review my entire case in true perspective and grant me such relief as deem fit after satifying my grounds submitted hereunder. 1. Sir, I belong to Scheduled Caste community, with 28 years of longest service in RPF. I am father of 4 children – age 19 years son, 8 years twins, 17 & 15 years daughters – all are studying and daughter unmarried. 2. …….. 3. ……. 4. …….. 5. …….. 6. Sri G.C. Naidu, ASC/North had also unfortunately developed personal enmity to my illluck, as I had questioned his enquiry proceedings in my previous departmental proceedings when he had unnecessarily recorded unwarranted evidence with a motive to cause hardship to me. When confronted in person, he had expressed his displeasure against me for my pointing out his shortfall in the Departmental enquiry whereby he naturally born ill-affection towards me. 7. Sir, even on 6-2-89 I received a Telegram from my native intimating that my mother was serious and to start immediately on which IPF refused to grant me leave whereby I had sought interview with DSC on 6-2-89 for grant of 5 days leave. 8. Sir, from the narration submitted above and in view of ill-treatment and harassment inflicted on me under the direct supervision of PC/Rayanapadu and now and then goaded by ASC/North my mind became blank and irritated, due to unpleasant atmosphere while mounting duty and also due to heavy family burden of five children to be looked after. 9. Sir, on 7-2-89 at Vijayawada luckily my brother came to inform me about my mother’s sickness since I did not go there on receipt of telegram on 6-2-89 and on hearing the condition of my mother, already mentally unwell with no balance of mind, I fell unconscious on the road itself and my brother had taken me to a nearby Hospital ‘Lakshmi Nursing Home’ where I was given treatment on 7-2-89 and 8-2-89. 10. Sir, fearful of my life, my brother shifted me to our closely known family Doctor at Eluru where I could recoup slowly from 9-2-89 onwards. 11. ………………… 12. Sir, even on 7-2-89 in my mental agony and torture in not getting leave, mother’s sickness and receipt of telegram, finding myself between scilla-and-charbdis, I submitted my voluntary retirement application also and sent the same by registered post to the kind Officer for acceptance because of my mental agony was in such a state of peak- mounted that I wanted to quit the Railway service once for all and retire voluntarily, though I am yet to serve Nine (9) years more in Railways. 13. Sir, I submitted my voluntary retirement purely keeping my children’s future in view because at the hands of IPF/RYP and enmity born by ASC/North, I am afraid of my benefits as IPF is openly propagating that he would send me to jail for absence etc., which indeed drove me to nuts and sought retirement please. 14. Sir, under the above pathetic plight, I may kindly be given relief by my venerable Officer either a smooth working post beyond the jurisdiction of IPF Sri G.Koteswara Rao and ASC/North, or kindly accept my voluntary retirement from 7-2-89 itself and grant me the boon of tranquility to live few more days with peace of mind.” Further, on 20-4-1989 the petitioner made a complaint against the Enquiry Officer as to his conduct in conducting the so called enquiry. However, the enquiry was conducted and the petitioner was dismissed from service by the disciplinary authority. The appeal filed against the said order was rejected and the revision filed by the petitioner also met the same fate. As seen from the above, it is crystal clear that the petitioner has expressed his prejudice against the said G.C. Naidu, Enquiry Officer in the earlier disciplinary proceedings and also the present proceedings. It is not in dispute that even while the earlier disciplinary proceedings were pending, the petitioner made a requisition on 1-11-1987 seeking voluntary retirement. But, his request was turned down on the ground that disciplinary proceedings are pending. It is a fact that the petitioner, 1½ months before initiating the present disciplinary proceedings, on 7-2-1989 again submitted a letter to the 3rd respondent seeking voluntary retirement and further letter on 20-2-1989. They were not acted upon and the present disciplinary proceedings were launched stating that the petitioner had collected money from various persons promising that he would get them employment as Constables in the RPF and he was unauthorizedly absent from duty from 7-2-1989 till the date of issuance of charge sheet. It is also not in dispute that the purported recording of statements of 32 persons by G.Koteshwar Rao, Inspector at Rayanapadu was behind his back – may be in the preliminary enquiry. Out of them, 15 persons gave statements before the Enquiry Officer. This is also behind the back of the petitioner. In fact, the petitioner addressed a letter dated 29-5-1989 stating that he was not in a position to attend the enquiry and the enquiry may be adjourned and the same may be taken up as soon as he joined duty. He submitted another letter dated 30-5-1989 enclosing the Medical Certificate from the Medical Officer, Government Hospital, Tadepalligudem advising him to report for duty on 29-5-1989 and reported as such at Rayanapadu. However, an ex parte enquiry was conducted and the petitioner was dismissed from service, which was confirmed by the appellate and revisional authorities. Insofar as the first aspect of bias is concerned, it is very clear that the very same Officer G.C.Naidu when he did not conduct enquiry properly earlier, the petitioner made a representation even in the earlier disciplinary proceedings complaining as to his conduct and in fact he was warned by the higher authorities and asked him to conduct a de novo enquiry. Though it was the request of the petitioner to change the very Enquiry Officer G.C.Naidu, he was not changed. As stated above, in the earlier proceedings the said Enquiry Officer found the petitioner guilty of the charges and considering the said findings, the disciplinary authority imposed the punishment of removal from service. However, the same was set aside by the appellate authority and a lesser punishment of stoppage of one increment for five years without cumulative effect was imposed. Thereafter, as seen from the record, the said G.C.Naidu assumed himself as a disciplinary authority and initiated the present proceedings in spite of there being a letter addressed by him to the 3rd respondent to permit to retire voluntarily from service with effect from 7-2-1989 itself. If really the Enquiry Officer and the disciplinary authority are one and the same i.e. G.C.Naidu, nothing prevented him from passing the final order also. In this case, admittedly, the final proceedings were passed by the 3rd respondent – Divisional Security Commissioner. This itself would show that G.C. Naidu was not the disciplinary authority and he was only an Enquiry Officer. Unfortunately, the Enquiry Officer himself assumed the position of a disciplinary authority, issued the charge sheet and enquired into the matter. Though the petitioner filed an application that he was not in a position to attend the enquiry, the Enquiry Officer, did not give opportunity and admittedly, conducted ex parte enquiry and submitted a report holding the petitioner guilty of the charge. The above two letters addressed by the petitioner to the higher Officers and the counter affidavit filed by the respondents reveals that the petitioner requested for change of the Enquiry Officer stating that G.C.Naidu was biased against him, but, since no specific points are made out as to the prejudice and bias attitude of the said Naidu, the enquiry was taken up by G.C.Naidu and found the petitioner guilty of the charges, would itself show that Naidu was disposed of prejudicially against the petitioner. Therefore, it was the basic duty of the disciplinary authority to change such an Officer by appointing another Enquiry Officer. A somewhat identical case came up before this Court in Dr. K.S. RAO v. STATE. The petitioner in the said case requested the Government to change the Enquiry Officer, but the Government decided that the same Officer should make the enquiry. In his affidavit, the petitioner therein alleged that the Enquiry Officer could not possibly be expected to conduct the enquiry with an open mind or to reach impartial conclusions as he had previously expressed a strong view without notice or reference to him that he should be removed from service on account of his alleged abnormal mental condition and that this bias coloured and influenced his conduct of the enquiry and his conclusions. The said allegation was not denied by the Government. In those circumstances, a Division Bench of this Court held as under: “11.……….It is, therefore, clear that the petitioner was compelled to submit to an enquiry by