Y. Venkateshwarlu vs The Union Of India, Rep. By Its ...
2022 Latest Caselaw 2571 AP

             THE HON'BLE Dr.JUSTICE K. MANMADHA RAO

                     WRIT PETITION No.18529 of 2012

ORDER:

This Writ Petition is filed under Article 226 of the Constitution

of India, seeking the following relief:

".....Issue Writ order or direction more particularly one in the nature of Writ of Mandamus declaring the action of the respondent No.3 in imposing the punishment of reduction of the petitioner's rank of ASIPF who is in the grade pay of Rs. 4200/- as Constable in the Grade Pay of Rs.2000/- for a period of 3 years with cumulative effect which is modified by the 2nd respondent vide Proc.Force Order No 88/2012 (X/P.227/153/ Appeal/YV /2012) dated 23.05.2012 to that of reduction to the rank of Head Constable for a period of 2 years with cumulative effect based on the incompetent regular enquiry officer who is in the rank of Inspector/RPF who is below the rank of Asst Security Commissioner who conducted the preliminary enquiry is illegal arbitrary and violative of Article 14, 16, 311 proviso of the Constitution of India apart from the Judgment in W.P.No.23404/2004, dated 22.12.2004 and consequently direct the respondents to continue the petitioner as Assistant Sub Inspector/RPF with all consequential benefits like seniority promotion etc., and pass such other orders."

2. Heard the learned counsel for the petitioner and the learned

Standing Counsel for Railways for the respondents.

3. The claim of the petitioner is that he was appointed as

R.P.F.Constable on 18.11.1979 and promoted to the post of Assistant

Sub Inspector on 01.11.2004. The superior officer of the petitioner by

name Sri V.D.Raju started harassing him for not obliging his orders

i.e to collect illegal amount from the hawkers in the railway stations

and running trains as mamul and to pay the same to him. Thereafter

Sri V.D Raju, Sub- Inspector had lodged a false complaint against the

petitioner that the petitioner did not book a case against

Smt.Rizwana, vendor of eatables, who sell the eatables unofficially in

the trains from Kurnool top Dhramavaram, though she was

apprehended on 06-06-2010 by the staff of Annathapur and taken to

the RPF Office, Ananthapur. Basing on the complaint, the 3rd

respondent had appointed K.M.Sukumaran, Assistant Security

Commissioner /RPF/ Guntakal as preliminary enquiry officer, who

conducted the enquiry and submitted his report to the 3rd respondent

vide Proc.No. G/XP.Complaints/ATP/10, dated 14.06.2010.

Thereafter he issued a charge sheet No.G/XP.227/153/09/YV/2010,

dated 21.06.2010 against the petitioner splitting the same charge

into 5 charges and appointed Sri Kota Joji ,IPF/Kadapa as enquiry

officer, who cannot be appointed as the enquiry officer as per the

railway rules. It is held by this Court in WP No 23404 of 2004, dated

22.12.2004 that the appointment of enquiry officer in the rank of

Inspector when the preliminary enquiry conducted by the rank of

Assistant Security Commissioner who is admittedly superior officer is

bad and against the Railway Rules.

4. Petitioner further contended that basing on the enquiry

report of the Sri Kota Joji, who is subordinate to the Assistant

Security Commissioner, the 3rd respondent had imposed the

punishment of reduction of rank from ASIPF drawing pay at

Rs.15,480/- in the pay scale of Rs.5200-20200+G.P.Rs 4200 to

Constable at pay of Rs.11,200/- in the scale of pay 5200-

20200+G.P.Rs 2000 for a period of 3 years with cumulative effect vide

Divisional Order No.98/2010 (No G/XP.227/153/09/YV/2010),dated

20.10.2010. Aggrieved by the same the petitioner filed a W.P.No

29422 of 2010, dated 19.01.2012 and this Court granted interim

orders stating that petitioner to be continued as Assistant Sub-

Inspector and writ petition was disposed of directing the petitioner to

approach the appellate authority. In pursuance of the same the

petitioner had submitted a representation on 17.03.2012 to the 1st

respondent to drop the charge against him and to cancel the transfer

order, but the 2nd respondent treated as resubmission of the appeal

on 08.04.2012 did not consider the grounds and had modified the

punishment instead of cancelling the same to that of reduction to the

rank of Head Constable for a period of 2 years with cumulative effect

vide Proc.No.X/P.227/153/ Appeal/YV/2012 , dated 23.05.2012 and

did not consider his revision remedy and passed Force Order

No.94/2012 and same was communicated to the 3rd respondent vide

letter No. X/P.677/GT/2010/Vol.III, dated 25.05.2012, conforming

the revision order to the rank of Head constable for a period of 2 years

with cumulative effect vide Force Order No.88/2012, dated

23.05.2012 and consequently the petitioner was transferred to

Vijayawada Division, which was communicated by 3rd respondent to

the petitioner vide D.O.No.55/2012 (No.G/XP.677/Vol.V/2012), dated

04.06.2012, basing on that report the controlling officer Inspector had

relieved the petitioner with normal transfer benefits with effect from

05.06.2012 as per proceedings No.IX/08/TRFD/ATP/2012, dated

05.06.2012, which is illegal and arbitrary.

5. Per contra, the respondents filed counter affidavit by

denying all material averments made in the writ affidavit and

contending that the petitioner was charged with the major penalty

charge sheet under Rule 153 of Railway Protection Force Rules 1987

vide memorandum No:G/XP.227/153/09/YV/2010 dated 21.6.2010,

while he was working at Dharmavaram, RPF Out post. The petitioner

filed two writ petitions 25328 of 2010 and 29422 of 2010 on the very

same issue and not having succeeded in the earlier writ petitions he

resorted to filing the this writ petition on the same issues of

proceedings vide Divisional Order No. 98 of 2010, dated 20.10.2010

of 3rd respondent and raised the settled issue that he has already

adjudicate upon by this Court in W.P.No.29422 of 2010 wherein it

was held that the matter decided by the court without touching the

merits of the case and petitioner had to approach the appellate

authority within 30 days. The news paper cited by the petitioner

shows the alleged misbehavior of the RPF officer with a lady hawker

and based on that the 3rd respondent issued a major penalty and

appointed Sri.Kota Joji to conduct a regular DAR enquiry. Petitioner

had not submitted any appeal inspite of court direction and after

compulsion from the office he had submitted his representation on

17.03.2012 and thereafter once again the 2nd respondent advised the

petitioner to submit the appeal through letter dated 04.04.2012 vide

No.X/P.648/2/2010/12, again the petitioner had re-submitted the

same representation/appeal. On 08.04.2012 the petitioner has not

bought any new defence to deny the averments made in the writ

affidavit. Hence, requested to dismiss the writ petition.

6. During hearing, learned counsel for the petitioner

vehemently contended that the inaction of the respondents is illegal,

and requested to issue a direction. Whereas, learned Standing

Counsel for the respondents reiterated the contents urged in the

Court Affidavit.

7. Learned counsel for the petitioner mainly contended that the

petitioner has not obliged the illegal orders of the immediate officer

one V.D.Raju, Sub-Inspector lodged a false complaint against the

petitioner alleging that the petitioner has not booked a case against

one Smt. Rizwana, who is vendor of eatables in the trains, in spite of

apprehended on 06.06.2010 by the railway staff. Basing on the

complaint an enquiry was initiated by the 3rd respondent and

appointed K.M.Sukumaran, Assistant Security Commissioner, RPF,

Guntakal and he submitted a report dated 14.06.2010. Basing on the

preliminary enquiry report of the Assistant Security Commissioner

Mr. K.M.Sukumaran issued Charge Sheet dated 21.06.2010 against

the petitioner and appointed Mr. Kota Joji, IPF/ Kadapa as Enquiry

Officer, who is subordinate officer in rank to the Assistant Security

Commissioner K.M.Sukumaran as such he cannot be appointed as

Enquiry Officer as per the Railway Rules. Basing on the enquiry

report by the subordinate officer the 3rd respondent imposed the

punishment of reduction from rank of ASIPF drawing the pay at Rs.

14,580/- in the pay scale of Constable at pay of Rs. 11,200/- for a

period of 3 years with cumulative effect as per Divisional Order No. 98

of 2010, dated 20.10.2010, which is illegal and arbitrary.

8. Rule 153.2.1 of the Railway Protection Force Rules, 1987

reads as follows:

"Whenever the disciplinary authority is of the opinion that there are grounds for inquiring into the truth of any imputation of misconduct or misbehavior against an enrolled member of the Force, it may itself inquire into or appoint an Inquiry Officer higher in rank to the enrolled member charged but not below the rank of Inspector, or institute a Court of Inquiry to inquire into the truth thereof."

9. If there is any misconduct or misbehavior against the

petitioner, it may itself inquire into or appoint an enquiry officer, who

is higher in rank to the petitioner, who is charged, but not below the

rank of him. In the instant case, the enquiry was conducted by a

subordinate officer, basing on his report the 3rd respondent imposed

the punishment of reduction of from the rank of ASIPF to Constable,

which is violative of Rule 153.2.1 of the Railway Protection Force

Rules, 1987 as cited supra.

10. Under Rule 153(2) of Railway Protection Force Rules,

1987 (for short, 'the Rules'), whenever disciplinary authority is of the

opinion that there are grounds for inquiring into the truth of any

imputation of misconduct or misbehaviour against an enrolled

member of the Force, it may itself inquire into, or appoint an Inquiry

Officer higher in rank to the enrolled member charged but not below

the rank of Inspector, or institute a court of Inquiry to inquire into the

truth thereof. This Rule provides for the disciplinary authority to

appoint an Enquiry Officer above the rank of enrolled member

charged but in any case he should not be less than the rank of

Inspector. The contention of the learned counsel for the respondents

is that since the petitioner is in the cadre of ASIPF, the 3rd respondent

appointed the enquiry officer in the cadre of Assistant Security

Commissioner, RPF, Guntakal, and the same is not against this rule.

But, the learned counsel for the petitioner contended that the rules

governing the service conditions of the Railway employees would also

be applicable.

11. Under clause (3) of these Discipline, Appeal & Conduct

Rules, these Rules shall apply to every railway servant but shall not

apply to:-

a. any member of the All India Services;

b. any member of the Railway Protection Force as

defined in the Railway Protection Force Act, 1957".

12. No doubt, this provision excludes the Railway Protection

Force from the purview of this Discipline, Appeal & Conduct Rules,

but, in my considered opinion, the Rules 21, 86, 117, 145 and 146 (1)

of the RPF Rules read together in juxtaposition as they have got to

be, it is clear that the rules governing the service conditions of the

railway employees and the directives issued from time to time shall

also be applicable to the members of the Armed Reserve Force. In

one of the circulars issued by the Railway Board in its letter dated

10.4.1962, when it was brought to the notice of the Board that in

certain cases departmental enquiry was held by an officer of a status

lower than the one who had conducted the fact finding enquiry and

that in such cases there was a possibility of the enquiry officer being

influenced by the findings of the superior authority, the Board have

considered the matter and decided that the departmental enquiries

for disciplinary action should not be entrusted to an officer lower in

status than that of the officer who conducted the fact finding enquiry.

13. Rule 248.1 of the Railway Protection Force Rules, 1987,

which reads as follows:

" Whenever a complaint against the misconduct of any member of the Force is received from the members of the public or where such complaint is received through a court wherein civil or criminal proceedings against a member of the Force have been instated or otherwise, and controlling officer of such member of the Force is of the opinion that allegations are verifiable or otherwise an inquiry is called for, he may proceed to inquire himself into the complaint against a member of the Force specified in column (1) of the table below or depute any other officer as specified in the corresponding entry in column (2) of the said table:

         Members of the Force against               Inquire Officer
          whom complaints received
                     (1)                                  (2)
        Constables/(***)/Head                 Of and above the rank of
        Constables                            Inspector.
        Sub-Inspector/ Assistant              Of and above the rank of
        Sub-Inspector                         Assistant Commandant.
        Inspector/Assistant                   Of and above the rank of
        Security Commissioner                 Security Commissioner.
        Security Commissioner or above        (Principal Chief Security
                                              Commissioner) or the
                                              (Chief Security
                                              Commissioner) or the
                                              Deputy Chief Security
                                              Commissioner, if so
                                              authorized by him.

14. As could be seen from the Rules 248.1 of the Railway

Protection Force Rules, 1987, it is made clear that the rank of the

petitioner is ASIPF. Even assuming for a moment, if really the

petitioner committed any misconduct or committed any irregularity,

the Inquiry has to be conducted through the rank of Assistant

Commandant as per Column (2) shown above. Here, in the instant

case, an enquiry was conducted against the petitioner through the

subordinate officer in rank to the Assistant Security Commissioner,

which is unfair on the part of the respondents.

15. So, in this case admittedly a preliminary enquiry was

conducted by the Assistant Security Commissioner. Since the 3rd

respondent appointed the enquiry officer lower cadre than that of the

petitioner, there is every possibility of the Enquiry Officer being

influenced by the findings of the superior authority, which is not in

accordance with the rules governing the service conditions of the writ

petitioner.

16. Learned Standing Counsel for the respondents placed

reliance on a decision of this Court in W.P.No. 22025 of 2020, dated

26.02.2021, wherein it was held that Section 14 of the Act vests the

jurisdiction on the Tribunal, the powers and authority exercised by

the Courts is statutory and thereby the question of entertaining any

writ petition by this Court and question of issuing any direction to the

respondent - railways while exercising power under Article 226 of the

Constitution of India does not arisen when a statutory tribunal is

constituted such issues relating to the employees under the control of

Central Government including railways. But the said Writ Petition is

filed seeking relief to grant family pension to the petitioner therein

after obtaining the decree and judgment from the competent civil

court. Therefore such similar issue is not involved in the present writ

petition, hence the above case law is not applicable to this case.

17. Viewing from any angle, this Court opines that the enquiry

conducted by the Inquiring Authority is improper as per rules as cited

supra. Therefore, the respondent authorities failed to conduct enquiry

as per rules. Therefore the punishment imposed by the 3rd respondent

against the petitioner is declared as illegal and arbitrary and same is

hereby set aside. Further directing the respondents to continue the

petitioner as Assistant Sub Inspector/ RPF with all consequential

benefits like seniority, promotion etc., within a period of four (04)

weeks from the date of receipt of a copy of this order. It is left open for

the respondents to proceed with enquiry in accordance with law, if so

advised against the petitioner.

18. With the above direction, the writ petition is disposed of. No

costs.

As a sequel, miscellaneous applications pending, if any, shall

also stand closed.

___________________________________ DR.JUSTICE K. MANMADHA RAO Date: 21.06.2022.

KK

THE HON'BLE Dr.JUSTICE K. MANMADHA RAO

WRIT PETITION No.18529 of 2012

Date:21.06.2022.

KK