IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
FRIDAY, THE 29TH DAY OF APRIL 2022 / 9TH VAISAKHA, 1944
WP(C) NO. 31474 OF 2018
PETITIONER:
P.GEETHA
AGED 55 YEARS
W/O LATE K. ANANDARAJAN, KUNNIL HOUSE, RAILWAY STATION ROAD,
CHERAVALLY, KAYAMKULAM PO, ALLEPPY DISTRICT
PIN - 690 502
BY ADVS.
SRI. T.C.GOVINDA SWAMY
SMT. KALA T.GOPI
RESPONDENTS:
1 UNION OF INDIA
REPRESENTED BY THE SECRETARY TO THE GOVERNMENT OF INDIA,
MINISTRY OF RAILWAYS, RAIL BHAVAN, NEW DELHI - 110001
2 THE DIVISIONAL SECURITY COMMISSIONER
RAILWAY PROTECTION FORCE, SOUTHERN RAILWAY, TRIVANDRUM
DIVISIONAL OFFICE, THIRUVANANTHAPURAM-695 014.
3 THE CHIEF SECURITY COMMISSIONER
RAILWAY PROTECTION FORCE, CHENNAI-600 003.
4 THE DIRECTOR GENERAL,
RAILWAY PROTECTION FORCE, NEW DELHI-110 001.
BY ADV. SRI.MATHEW BOBBY KURIAN, SC, RAILWAYS
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13.01.2022,
THE COURT ON 29.04.2022, DELIVERED THE FOLLOWING:
W.P.(C) 31474 OF 2018
2
JUDGMENT
Dated this the 29th day of April, 2022 The petitioner's late husband K. Anandarajan was a Constable in the Railway Protection Force. While Anandarajan was posted at Ernakulam Junction Railway Station/Southern Railway/Trivandrum Division, certain allegations of misconduct were levelled against him, resulting in his removal from service by order dated 17.09.1991. The order imposing penalty was affirmed in appeal and revision. Challenging the original, appellate and revisional orders, Anandarajan filed W.P.(C) No.21520 of 2003 before this Court. The prime contention was that the disciplinary proceedings was conducted in violation of the principles of natural justice, inasmuch as a copy of the enquiry report was not furnished to him and his explanation sought on the findings in the report. By Ext.P1 judgment dated 07.06.2013, the writ petition was allowed finding that the appellant was W.P.(C) 31474 OF 2018 3 not given opportunity to show cause against the findings in the enquiry report and the proposal for punishment. Accordingly, the disciplinary proceedings from the stage after submission of the enquiry report was quashed, without prejudice to the respondents right to proceed afresh. The respondents were directed to afford with an opportunity to represent against the findings and the proposed punishment. In deference to the directions in Ext.P1 judgment, Anandarajan was reinstated to service by Ext.P2 order dated 19.09.2013. Under Ext.P3 order issued on the same day, a copy of the enquiry report was served and the charged employee was put on notice that the disciplinary authority will take suitable decision under the proviso to Rule 153 of RPF Rules, 1987 and if the employee wishes to make any representation or submission, he may do so in writing within 15 days. In response, Anandarajan submitted Ext.P4 explanation contending that the allegation, based on which disciplinary proceedings was initiated, W.P.(C) 31474 OF 2018 4 is baseless and foisted on him due to personal animosity of the SIPF. The competent authority refused to accept the explanation and issued Ext.P5, finding Anandarajan guilty of the charges and awarding him with the penalty of removal from service. Anandarajan approached this Court challenging the order imposing penalty and by Ext.P6 judgment dated 28.02.2017, this Court disposed the writ petition, directing the competent authority to take up and consider the appeal to be preferred by the petitioner against the impugned order. This Court also granted liberty to the petitioner to take up all contentions in the appeal to be submitted by him. Unfortunately, Anandarajan passed away on 03.03.2017. Therefore, the appeal was filed by the petitioner, in her capacity as the delinquent employee's wife. The appeal was rejected by Ext.P8 order and hence, this writ petition, seeking to quash Exts.P5 and P8 orders and consequential reliefs.
The alleged incident based on which disciplinary W.P.(C) 31474 OF 2018 5 proceedings was initiated against Anandarajan is as follows;
On 19.12.1990 an unauthorised vendor by name M.Sulaiman was booked for the offence under Section 144 of the Railways Act, 1989, for unauthorisedly selling tea in Train No.6525. Upon registration of the crime, the flask used for selling tea was seized from the vendor's possession. Sri. M Sulaiman was released on his own bail with a condition that he should report before the court on 26.12.1990. Accordingly, he reported before the court and was convicted and sentenced to pay a fine of Rs.300/-. The court also directed to return the flask seized from his possession. On the same day at about 13:45 hours, K Anandarajan, who was under sick list, came to the Railway Police Station along with the accused Sulaiman and Head Constables P.K. Sukumaran and A Bharathan. They informed the SIPF/ERS that the court had ordered to handover the seized property to Sulaiman. The SIPF instructed the Head Constable to W.P.(C) 31474 OF 2018 6 handover the property to Sulaiman under acknowledgment. While handing over the seized property to the unauthorised vendor, Anandarajan handed over one more steel flask, which did not belong to Sulaiman. When the SIPF saw the unauthorised vendor carrying two flasks, he questioned him and thereupon Sulaiman revealed that the steel flask was not his and was handed over to him by Anandarajan on condition that Sulaiman should pay him Rs.100/- as illegal gratification.
2. Learned Counsel contended that, even though 6 witnesses were examined to prove the charge, none of them, except the SIPF, deposed in support of the charge. Sulaiman, the prime witness categorically stated that Anandarajan had not given him the flask on 26.12.1990 and he had not spoken to Anandarajan on that day. He also stated that he had given the statement at the instance of the SIPF and he never expected that severe action will be taken against Anandarajan based on that statement. All three eye W.P.(C) 31474 OF 2018 7 witnesses to the handing over of the flask to Sulaiman from the store room stated that they had not seen Anandarajan giving any flask to Sulaiman on 26.12.1990. The SIPF stated that, on questioning, Sulaiman had stated that the flask were handed over to him by Anandarajan with a demand for Rs.100/- for the second flask. Therefore Sulaiman's statement was recorded. To the specific question as to whether any other person had witnessed the SIPF recording Sulaiman's statement, he answered in the negative.
3. The other contention is that, in spite of this Court having directed the competent authority to afford an opportunity to the delinquent employee to represent against the proposed punishment, Ext.P5 order was passed without affording any such opportunity. In Ext.P6 judgment, the competent authority was also directed to consider the question of proportionality of punishment, which also the authority failed to do. Reliance is placed on the decisions in Central Bank of India Ltd. v. Prakash W.P.(C) 31474 OF 2018 8 Chand Jain [AIR 1969 SC 983], Kuldeep Singh v. Commissioner of Police and other [1999 (2) SCC 10] and M.V. Bijlani v. Union of India and others [2006 (5) SCC 88], to contend that the power of judicial review available to High Court can be exercised if the finding of guilt is based on no evidence or on the basis of surmises and conjunctures.
4. Learned Standing Counsel for the Railways pointed out that this Court is not expected to sift through the evidence like an appellate forum and come to a different conclusion than that of the disciplinary authority. According to the learned Counsel, the charges levelled against the delinquent employee was proved with the support of oral and documentary evidence. The argument based on the direction in Ext.P1 judgment is met by relying on Rule 154.7 of the RPF Rules, 1987, which specifically states that it shall not be necessary to give the party charged any opportunity of making representation on W.P.(C) 31474 OF 2018 9 the punishment proposed to be imposed.
5. No doubt, in exercise of the power under Article 226, the High Court should not interfere with the findings in the enquiry report. At the same time, there is no absolute embargo against interfering with the conclusions reached in a domestic enquiry, if the findings are based on surmises and conjunctures alone. The test is whether an ordinary prudent man would have reached at such a finding. In this context, it may be apposite to extract the following paragraph from M.V. Bijlani v. Union of India (supra);
"Paragraph 25: It is true that the jurisdiction of the court in judicial review is limited. Disciplinary proceedings, however, being quasi criminal in nature, there should be some evidence to prove the charge. Although the charges in a departmental proceeding are not required to be proved like a criminal trial i.e. beyond all reasonable doubt we cannot lose sight of the fact that the enquiry officer performs a quasi judicial function, who upon analysing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of W.P.(C) 31474 OF 2018 10 materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with."
6. In order to address the contention regarding absence of evidence to prove the guilt of the delinquent employee, it is necessary to peruse the relevant portions of the statement of allegations and the deposition of witnesses before the enquiry officer. The relevant portion of statement of allegation, based on which disciplinary proceedings were initiated against Anandarajan, reads as follows;
"On 26-12-90, at about 13-45 hrs. Sri.K.Anandarajan, Constable, 44/Dsl/ERS who was under sicklist of DMO/ERS came to RPF Post/ERS along with Sri. P.K.Sukumaran, HC/36/SF/ERS, Sri.A.Bharathan, HC/78/SF/ERS and unauthorised vendor and informed the SIPF/ERS that the court has ordered to hand over the seized property to unauthorised vendor. The SIPF instructed the HCS to hand over the property to him in presence of Sri. P.K.Ashok Kumar Constable, 135/Dsl/ERS under acknowledgment and the SIPF W.P.(C) 31474 OF 2018 11 went to parcel office. The property was kept in the store rook of RPF Post/ERS with other seized properties. While handing over the seized property to the unauthorised vendor Sri. K.Anandarajan, Constable, 44/Dsl/ERS handed over one more steel flask which does not belong to him. After a few minutes the SIPF came back to the post, and saw that the HCS and the unauthorised vendor were proceeding towards mobilisation hall, ERS and noticed that the unauthorised vendor was having two flasks. The SIPF called back the unauthorised vendor and questioned him about the two flasks. He revealed that the steel flask does not belong to him and this was handed over by Sri. K.Anandarajan, Constable, 44/Dsl/ERS with a condition to pay Rs. 100/- to him as illegal gratification for having given the flask."
In order to prove the allegation, the department examined 6 witnesses. Sulaiman, the unauthorised vendor was examined as PW1. The relevant portion of his cross-examination is extracted hereunder;
"Q.8. Who gave the flask to you?
A. I do not know who gave the flask.
Q.9. Do you know me?
A. I know you.
Q.10. Did I gave the flask to you on 26.12.90 when you came to the office after attending the Court?
W.P.(C) 31474 OF 2018 12 A. No. you have not given me any flask on 26.12.90. Q.11. SIPF/ERS present in the Station when you received the flask on 26.12.90?
A. I do not know.
Q.12. Did I have any kind of talk on that day (26.12.90) with you with any matter? A. No. you have not spoken with me on 26.12.90." P. K. Ashok Kumar one of the Constables present, has also deposed in the same line. The relevant question and answer are as under;
"Q. 34. Did you see that Anandarajan giving any flask to any of the three unauthorised vendors on 26.12.90?
A. No. I did not see Anandarajan giving any flask to any of the three vendors."
A. Bharathan, another constable who was present during the relevant time, deposed as under;
"Q. 37. Did you see it me talking with Sulaiman unauthorised vendor on 26.12.90 in RPF Post ERS?
A. No. I did not see you along with Sulaiman on 26.12.90 or I did not hear any conversation between you and Sulaiman.
Q.38. Whether you gave the statement (Ex.PIII) to SIPF/Ers voluntarily or on any demand of anybody?
W.P.(C) 31474 OF 2018 13 A. I gave my statement on the demand of SIPF/ERs." K. Sukumaran Pillai Inspector, RPF stated that he was not present when the flasks were handed over to the unauthorised vendor.
The relevant portion of the deposition of the other witness P K Sukumaran reads as under;
"Q.47. Did you see me on 26.12.90 whether I entering inside the store room where the flask were kept or you see that I am giving any flask to Sulaiman, the unauthorised vendor on that day at any time?
A. No. I did not see you inside the store room or giving flask to Sulaiman but your present there."
The following portion of the deposition of K. P. Sasidharan Nair, the SIPF at whose instance the disciplinary proceedings was initiated, also assumes relevance.
"Q.64 In the statement of Sulaiman, the unauthorised vendor (Ex P1) he has categorically stated that "while I was going to MH along with Sri. Bharathan HC 78, with two flask with me to K.Anandarajan C44/DSL/ERs with two flask with me to give the acknowledgment for the receipt of the two flasks, SIPF/ERs has seen as and asked me how I got two flasks. Then I told that both the flask was seized from me in two cases and own my W.P.(C) 31474 OF 2018 14 request the above RPF officials given to me. From the above statement it is clear that the flask was given by RPF Staff. He has not particularly stated my name. Then how can you write a report showing that I only gave the flask to the vendor?
A. In the statement of Sulaiman he obviously stated that one steel flask, was given to him by Sri. K.Anandarajan that is why I made a report against Sri. K.Anandarajan. But in the above para the unauthorised vendor has not mentioned your name. Q.65. Did anybody witness the statement of Sulaiman the unauthorised vendor which was recorded by you on 26-12-90.
A. Nobody has witnessed the recording of the statement of the above witness."
7. The oral evidence tendered by the witnesses unequivocally shows that none of them had witnessed Anandarajan handing over the second flask to Sulaiman. The only piece of evidence is the alleged statement of Sulaiman recorded by the SIPF. Admittedly, Sulaiman had not named Anandarajan as the person who had handed over the flask and no one has witnessed the recording of the statement by the SIPF. Evidently, the enquiry officer has found the charges to have been proved, based on minor W.P.(C) 31474 OF 2018 15 discrepancies in the evidence of Sulaiman. The presence of Anandarajan at the Railway Police Station on a day on which he was on sick leave, is taken as an indication of his guilt. In Ext.P5, the disciplinary authority went one step ahead and found that the evidence on record makes it clear that it was at the insistence of the charged employee that the second flask was handed over to Sulaiman. It is observed that the vendor in his statement to SIPF/ ERS, as well as Ashok Kumar, who was on duty at the lock-up room, has stated so. Further, the IPF, a responsible in-charge of the post had also cross checked the veracity of the statement given by the witnesses. Being so, the fact that they deviated from the contents of the original statement is a minor aberration.
8. Having scrutinised the evidence and having analysed the reasoning of the disciplinary authority, as affirmed by the appellate authority, I am constrained to hold that the finding of guilt against W.P.(C) 31474 OF 2018 16 Anandarajan is based on no evidence. The mere presence of Anandarajan at the locker room of the Police Station on a day on which he was on sick leave or the fact that he was found speaking to Sulaiman, cannot lead to the conclusion that it was Anandarajan who had handed over the second flask to Sulaiman, that too, by demanding illegal gratification of Rs.100/.
Having found the impugned orders to be based on no evidence, Exts.P5 and P8 are set aside. The benefits due to the petitioner, in her capacity as widow of the delinquent employee, shall be disbursed within three months of receipt of a copy of this judgment.
Sd/-
V.G.ARUN JUDGE NB W.P.(C) 31474 OF 2018 17 APPENDIX OF WP(C) 31474/2018 PETITIONER'S EXHIBITS EXHIBIT P1 TRUE COPY OF JUDGMENT IN WP(C) NO.21520/03 DATED 07.06.2013 RENDERED BY THIS HON'BLE COURT. EXHIBIT P2 TRUE COPY OF MEMORANDUM BEARING NO.VXP/227/153/2/91 DATED 19.09.2013, ISSUED FROM THE OFFICE OF THE 2ND RESPONDENT.
EXHIBIT P3 TRUE COPY OF LETTER BEARING NO.VXP/227/153/2/91 DATED 19.09.2013, ENCLOSING A COPY OF THE INQUIRY REPORT ISSUED FROM THE OFFICE OF THE 2ND RESPONDENT.
EXHIBIT P4 TRUE COPY OF OBJECTIONS DATED 01.10.2013, SUBMITTED TO THE 2ND RESPONDENT.
EXHIBIT P5 TRUE COPY OF PENALTY ADVICE BEARING NO VXP/227/153/2/91 DATED 28.11.2013, ISSUED BY THE 2ND RESPONDENT.
EXHIBIT P6 TRUE COPY OF THE JUDGMENT IN WP(C) NO.29607/2013 DATED 28.2.2017 RENDERED BY THIS HON'BLE COURT. EXHIBIT P7 TRUE COPY OF THE APPEAL DATED 19.5.2017 SUBMITTED TO THE ADDL.CSC/RPF/MAS.
EXHIBIT P8 TRUE COPY OF THE ORDER BEARING NO.
VXP/227/153/2/91 DATED 29.5.2018, ISSUED BY THE 3RD RESPONDENT.
EXHIBIT P9 TRUE COPY OF MAJOR PENALTY CHARGE MEMORANDUM BEARING NO, CHARGE U/R/153 DATED 4/2 (1991), ISSUED BY THE 2ND RESPONDENT.
EXHIBIT P10 TRUE COPY OF STATEMENT OF PW-1 SHRI.SULAIMAN DATED 27.2.91 RE-EXAMINATION OF PW-1 ON 4.3.1991. EXHIBIT P11 TRUE COPY OF STATEMENT OF PW-II SHRI P.K.ASHOK KUMAR, CONSTABLE NO.135/DSL DATED 4.3.1991. EXHIBIT P12 TRUE COPY OF STATEMENT OF PW-III SHRI BHARATHAN A,HEAD CONSTABLE NO.78/CG/TVC DATED 20.3.1991. EXHIBIT P13 TRUE COPY OF STATEMENT OF PW-IV SHRI.K.SUKUMARAN PILLAI IPF/ERS DATED 20.03.1991.
EXHIBIT P14 TRUE COPY OF STATEMENT OF PW-V SHRI.P.K. SUKUMARAN HC/36/ERM DATED 18.4.1991.
EXHIBIT P15 TRUE COPY OF STATEMENT OF PW-VI SHRI K.P.
SASIDHARAN NAIR, SIPF/ERS DATED 7.6.1991. RESPONDENTS' EXHIBITS: NIL TRUE COPY P.A. TO JUDGE