Andhra Pradesh High Court - Amravati
N.N. Prasad, vs The Asst. Security Commissioner 2 Ors, on 18 June, 2024
APHC010126032007
IN THE HIGH COURT OF ANDHRA
PRADESH
[3365]
AT AMARAVATI
(Special Original Jurisdiction)
TUESDAY ,THE EIGHTEENTH DAY OF JUNE
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE JUSTICE DR V R K KRUPA SAGAR
WRIT PETITION NO: 6078/2007
Between:
N.n. Prasad, ...PETITIONER
AND
The Asst Security Commissioner 2 Ors and ...RESPONDENT(S)
Others
Counsel for the Petitioner:
1. A RAJENDRA BABU
Counsel for the Respondent(S):
1. JUPUDI V K YAGNADUTT(CENTRAL GOVERNMENT
COUNSEL)
2. .
The Court made the following:
2
Dr. VRKS, J
W.P.No.6078 of 2007
SUBMITTED FOR APPROVAL:
THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR
1. WHETHER REPORTERS OF LOCAL NEWSPAPERS
MAY BE ALLOWED TO SEE THE JUDGMENT? YES/NO
2. WHETHER THE COPY OF JUDGMENT MAY BE
MARKED TO LAW REPORTERS/JOURNALS? YES/NO
3. WHETHER HIS LORDSHIP WISH TO YES/NO
SEE THE FAIR COPY OF THE JUDGMENT?
______________________________
Dr. V.R.K.KRUPA SAGAR, J
3
Dr. VRKS, J
W.P.No.6078 of 2007
* HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR
+ WRIT PETITION NO: 6078/2007
% 18.06.2024
# Between:
N.n. Prasad, ...PETITIONER
AND
The Asst Security Commissioner 2 Ors and ...RESPONDENT(S)
Others
! Counsel for the Appellant(s) : A Rajendra Babu
^ Counsel for Respondent(S): Jupudi V K Yagnadutt
< Gist:
> Head Note:
? Cases referred:
1. (2022) 6 SCC 563
2. (2015) 17 SCC 541
3. (2001) 5 SCC 340
4. (2018) 7 SCC 670
5. 2005 (3) ALT 632 (AP) (DB)
6. (2015) 2 SCC 610
4
Dr. VRKS, J
W.P.No.6078 of 2007
The Court made the following:
THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR
WRIT PETITION No.6078 of 2007
ORDER:
1. The writ petitioner is a constable in Railway Protection
Force. He is governed by the Railway Protection Force Act, 1957
and the Railway Protection Force Rules, 1987. On certain
allegations of mis-conduct, a preliminary enquiry was conducted
and thereafter a regular departmental enquiry was conducted and
he was found guilty by the disciplinary authority and punishment
of penalty of reduction of his pay by two stages in the existing
scale for a period of three years with cumulative effect was
inflicted. His appeal and thereafter his revision before competent
authorities were duly considered and were disposed of against
him. It is in those circumstances, invoking the jurisdiction of this
court under Article 226 of the Constitution of India, he preferred
the present writ petition with the following prayer: -
"this Hon'ble Court may be pleased to issue an appropriate
writ, order or direction more particularly in the nature of Writ
of Mandamus declaring the Proceedings No.
Dr. VRKS, J
D/XP.227/158/2005/16, in Divisional Order No. 06/2006
dated 08-02-2006 of the 1st respondent by which penalty of
reduction of pay by two stages in the existing scale of
Rs.3200-4900 for a period of 3 years with cumulative effect,
and the 2nd respondent by Proceedings No.
D/XP.227/158/2005/16, in Divisional Order No. 28/2006
dated 22-03-2006 rejected the appeal, and the same was
confirmed by the 1st respondent by Proceedings No.
X/P.227/153/Appeal/2006-20, Force Order No. 136/2006,
dated 11-08-2006 as arbitrary, illegal, violation of principles
of natural justice and total non application of mind and to
quash or set aside the same and to pass such other order
or orders, which are deemed fit and proper in the
circumstances of the case.
2.` On behalf of respondents, a counter affidavit was filed
containing elaborate reply to the various contentions raised in the
writ petition. The respondents sought dismissal of the writ
petition.
3. Sri A. Rajendra Babu, the learned counsel for writ petitioner
and Sri Jupudi V.K.Yagnadutt, the learned standing counsel for
Central Government submitted arguments. Learned counsel on
both sides cited precedent.
4. On behalf of writ petitioner, it is contended
• That the findings of the enquiry officer are perverse. The
appellant authority and revisional authority mechanically
disposed of the case without assigning any reasons.
Dr. VRKS, J
• The enquiry officer failed to follow the procedure
contemplated under the relevant provisions especially Rule
153 of RPF Rules, 1987.
• That the enquiry officer was appointed along with charge
memo which is unknown to law.
• No presenting officer was appointed and the enquiry officer
himself examined the witnesses and cross-examined the
writ petitioner.
• The incident which is a subject matter of enquiry took place
before TC office but the TC was not examined.
• Initiation of enquiry was only because of a news item
published in the newspapers and the correspondent of the
news item was not examined. That the explanation of the
writ petitioner was not considered by the enquiry officer.
• That the punishment inflicted is disproportionate to the
charges proved.
5. Learned counsel for writ petitioner brought attention of this
court to Rules 146, 148, 153, 212, 217 of RPF Rules, 1987 and
cited: -
Dr. VRKS, J
1. State of Karnataka V. Umesh1
2. Brij Bihari Singh V. Bihar State Financial Corporation2
3. Deokinandan Sharma V. Union of India3
4. Union of India V. Ram Lakhan Sharma4
5. Ch.Appala Reddy V. Eastern Power Distribution5
6. Learned standing counsel for Central Government
representing the respondents contended that the departmental
enquiry was conducted in accordance with the rules and that
there was no deviation and that the appellate authority and the
revisional authority acted in accordance with the Rules 217 and
219 respectively and the orders impugned are based on evidence
and supported by valid reasons and in the uniformed service
discipline is the watchword and any infraction of law demeaning
the esteem of the organization requires adequate punishment
and the punishment inflicted is proportionate to the charges
established and this writ court in such circumstances may not
interfere with the impugned proceedings. Learned standing
(2022) 6 SCC 563
2 (2015) 17 SCC 541
(2001) 5 SCC 340
(2018) 7 SCC 670
2005 (3) ALT 632 (AP) (DB)
Dr. VRKS, J
counsel for central Government cited Union of India V.
P.Gunasekaran6.
7. The entire relevant record is placed before this court which
include the preliminary enquiry and the report thereon and the
disciplinary enquiry and the report thereon and the orders of the
disciplinary authority, appellate authority and revisional authority.
Having keenly considered the material on record and the
arguments submitted on both sides, the following aspects are to
be noticed: -
The charges made against the writ petitioner read as
below: -
1. He was detailed to perform duty in the circulating area of
NDD station on 07-10-2005 in the shift of 14-00 hours to 22
hours, but was found in the T.C.Ss. office at about 20.30
hours by Sri Ch. Ramanaiah. H.C. 898 and Sri Md. Ibrahim
Khan, ASIPF of NDD post, thus Sri N.N. Prasad has
deserted his beat area and neglected his nominated duties
thereby violating Rule 146.2(i) and (ii) of the RPF rules
2. He has collected daily tips from the unauthorized hawkers
of NDD station and also lent money to them on interest and
acted in a manner unbecoming of a railway servant. He has
thus placed himself under a pecuniary obligation to them
i.e., bound to effect the proper discharge of his duties as a
member of the Force. Thereby he violated Rule No. 3(1)(ii)
of the Railway Services (Conduct) Rules 1966 and Rule
146.7(ii) and (iii) of the RPF Rules, 1987.
(2015) 2 SCC 610
Dr. VRKS, J
3. On 07-10-2005 Sri N.N. Prasad CON. 434/ NDD has
manhandled two hawkers in the station premises of NDD
Station during his duty hours for personal reasons, which
amounts to abuse of authority. The incident was reported in
the tabloid of Telugu Daily Newspaper Eenadu on 08-10-
2005 by his conduct he has lowered the image of the Force
in the eyes of the public and thereby violated Rule 146.4
and 146.8(b) of the RPF Rules, 1987. He also violated the
code of behaviour as envisaged in Rule No.146.1 of the
RPF rules, 1987.
The report of the enquiring authority runs into 20 pages and
finally the findings arrived at read as below: -
1. Sri. N.N. Prasad, Constable 434/NDD detailed to perform
duty in the circulating area of NDD station, on 07.10.2005,
in the shift of 14.00 hours to 22.00 hours but was found in
the Ticket Collector office at about 20.30 hours by Sri.
Ch.Ramanaiah, HC-898/NDD and Sri. MD. Ibrahim Khan,
ASIPF/NDD. Thus Sri. N.N. Prasad, Constable 434/NDD
has deserted his beat area and neglected his nominated
duties is 'PROVED' beyond all the reasonable doubts.
2. Sri. N.N. Prasad, Constable 434/NDD has collected daily
tips from the unauthorised Hawkers of NDD station is 'NOT
PROVED' and lent money to the unauthorised Hawkers on
interest and acted in manner unbecoming of a Railway
servant is 'PROVED' beyond all the reasonable doubts.
3. On 07.10.05, Sri. N.N. Prasad, Constable 434/NDD has
manhandled the hawkers in the station premises of NDD
station during his duty hours for personal reasons, which
amounts to abuse of authority. The incident was reported in
the Tabloid of Telugu daily newspaper Eenadu on
08.10.05. By his conduct, he has lowered the image of the
Force in the eyes of the public is 'PROVED' beyond all the
reasonable doubts.
Dr. VRKS, J
8. In State of Karnataka V. Umesh (referred supra), the
Hon'ble Supreme Court of India held that disciplinary proceedings
are to enquire into allegations of mis-conduct against delinquent
employee. Rules of evidence which apply to criminal trials do not
apply with equal force in the disciplinary enquiry. Charges could
be taken to have been proved based on preponderance of
probabilities. That the judicial review available under Article 226
of the Constitution of India does not enable the writ court to act as
an appellate forum over the findings of disciplinary authority and
the writ court is inhibited from re-appreciating the evidence. Their
Lordships held that the writ court in exercise of judicial review
must restrict its review to determine whether: -
1. Rules of natural justice have been complied with
2. Findings of misconduct whether based on some evidence
or no evidence
3. Whether statutory rules governing conduct of disciplinary
authority were violated or not
4. Whether findings of disciplinary authorities suffer from any
perversity
5. The proportionality of the penalty
9. In Union of India V. P.Gunasekharan(referred supra),
similar principles were laid down by their Lordships of the Hon'ble
Supreme Court of India and it is further held that while assessing
Dr. VRKS, J
the proportionality of punishment, the interference of a writ court
is called for only when the punishment inflicted shocks the
conscience of the court but not otherwise. Their Lordships further
stated that a writ court cannot correct the errors on facts, however
grave it may appear to be, as long as the conclusions arrived at
by the disciplinary authority are based on evidence available on
record.
10. The above principles shall govern the case at hand as they
lay down the contours of the powers of writ court in service
matters. It is undisputed that the punishment inflicted against the
writ petitioner is a major punishment and the procedure governing
it is prescribed in Rule 153 of RPF Rules, 1987. Rule 153.5
mandates that the disciplinary authority shall deliver a copy of the
articles of charge well before commencement of the enquiry. Rule
153.2.1 permits the disciplinary authority to appoint an enquiring
officer. The contention raised on behalf of the writ petitioner is
that preparation of articles of charge and appointment of
enquiring officer took place at the same time and that is against
law. In this regard, for appellant Ch.Appala Reddy V. Eastern
Power Distribution(referred supra) is cited. That is a case
where enquiring officer was first appointed and subsequently
charges were framed. It is in the said context, Hon'ble Division
Bench of this court held as mentioned below: -
"In any disciplinary proceedings, the necessity to appoint
an Enquiry Officer arises only when the appointing authority
points out certain acts of indiscipline on the part of the
delinquent employee and the explanation offered by the
Dr. VRKS, J
employee is not satisfactory. On the other hand, where the
explanation is found to be satisfactory, the necessity to
proceed further does not arise or remain. In V.K. Khanna 's
case, the Supreme Court reinstated this position of law and
held that appointment of an Enquiry Officer even before a
show-cause notice or charge-sheet is served upon an
employee is unknown to service jurisprudence. It was
further observed that in such an event, an element of bias
exists vis-a-vis the Enquiry Officer"
In the case at hand, the fact situation is different. The
regular departmental enquiry is preceded by a preliminary enquiry
which indicated the need for holding a regular departmental
enquiry. It was thereafter articles of charge were made by
disciplinary authority. The charges were served on the writ
petitioner and he submitted his written statement as mentioned in
paragraph No.4 of the affidavit filed in support of the writ petition.
Since he denied the allegations, enquiry proceeded further. The
appointment of enquiry officer as well as formulation of articles of
charge took place on 28.10.2005. That makes it clear that the
enquiry officer was not appointed before formulation of charges.
The ruling cited is distinguishable by that aspect. The writ
petitioner failed to bring to the notice of this court any provision in
RPF Rules, 1987 and its infraction in this regard. It is not the
ground urged in the writ petition or is it the argument advanced on
his behalf, that there was any bias on part of the respondents in
appointing the enquiry officer or that there was any bias attributed
against the enquiry officer. Therefore, this court holds that there
exist no bias and formulating articles of charge and appointing
enquiry officer simultaneously by itself is not in violation of any
Dr. VRKS, J
statutory provisions or rules. Therefore, this contention is
negatived.
11. It is contended on behalf of writ petitioner that there was no
presenting officer was appointed and the enquiry officer himself
examined the witnesses and cross-examined the writ petitioner
who testified during the course of enquiry. It is in this regard for
writ petitioner Union of India V. Ram Lakhan Sharma(referred
supra) is cited. That case pertains to armed forces governed by
Central Reserved Police Force Act, 1949 and Central Reserved
Police Force Rules, 1955. In that case, no presenting officer was
appointed and the enquiry officer himself led the examination in
chief of prosecution witnesses. It was in that context of the above
facts, their Lordships observed that where the statutory rules are
silent about appointment of presenting officer, there is no legal
requirement of appointing a presenting officer in each and every
case. However, the facet of principles of natural justice falls for
consideration in such instances. It is the legal requirement that
the enquiry officer has to be independent and should not act as a
representative of disciplinary authority. If the enquiry officer starts
acting in any other capacity and proceeds to act in a manner as if
he is interested in eliciting evidence to punish the employee, the
principle of bias comes into play. Thus, their Lordships held that
where the enquiry officer failed to play his neutral role and
indulged in acting adversely, it is only in those cases, the
proceedings may be held as invalid. In the case at hand, the writ
petitioner failed to indicate any provision from RPF Rules, 1987
mandating disciplinary authority to appoint a presenting officer. In
Dr. VRKS, J
the grounds urged in the writ petition as well as in the arguments
advanced nothing was suggested before this court to say that the
enquiry officer lost his neutrality and acted in such a fashion to
see that the employee is punished at any cost. The aspect of bias
is neither pleaded nor argued. This court has looked into the
entire enquiry report and finds that he has recorded the
statements of all the prosecution witnesses in the presence of the
charged officer/ writ petitioner and the charged officer was
permitted and he accordingly cross-examined all those witnesses.
The charged officer alone testified in his defence and he was
questioned in cross by the enquiry officer. A reading of the
evidence narrated in the enquiry report does not make anyone to
think that the enquiry officer lost his neutrality and acted with bias.
When that being the case, mere non-appointment of presenting
officer has no adverse effect in this case. It may also be
mentioned here that before the appellate authority and revisional
authority, these aspects were never raised by the writ petitioner.
He has been raising these contentions for the first time before this
court. For all these reasons, this contention is negatived.
12. It is contended for the writ petitioner that the findings of the
enquiry officer are perverse and that there was no appreciation of
evidence on his part and that the authorities concerned failed to
consider the contentions raised by the writ petitioner in his written
statement and therefore the enquiry report and the order passed
based on it cannot be maintained at law. This court has gone
through the entire enquiry report which finds extensive narration
of facts spoken to by 7 prosecution witnesses and the facts
Dr. VRKS, J
elicited from them by the charged employee by way of cross-
examination. It also contains extensive reference to evidence
given by the writ petitioner and the facts elicited in his cross-
examination. The enquiry report indicates appropriate
consideration of all that evidence. A perusal of this report also
shows the contentions raised by the writ petitioner and as to how
those contentions were found to be incorrect and are against the
material on record. For instance, it referred to the evidence of
PWs.2 and 3 to hold that writ petitioner was not at his duty point,
namely, the circulating area of beat point in Nidadavolu Station
and at the relevant time, he was found in Ticket Collector's office
at 08.30 pm on 07.10.2005. It considered the evidence of PW.1/
inspector, RPF, Nidadavolu Station and from his evidence, it
found that the cause assigned by the charged officer explaining
his presence at ticket collector's office was found incorrect and
his presence was found for other reasons. The enquiry report
also shows the consideration of evidence of PWs.6 and 7 and
based on that, it held that the writ petitioner was found lending
money to unauthorized hawkers. It considered the evidence of
PW.4 and 5 and from whose evidence it found that he was
manhandling and threatening them. Thus, it is clear that there
was evidence collected during the course of enquiry and it is
further clear that there is extensive reference to this evidence and
there is clear consideration of the evidence and the conclusions
arrived at were based on evidence. There was due consideration
of contentions of charged officer and contentions raised in his
written statement and reasons for negativing such contentions.
They are adequately mentioned in the enquiry report. Therefore,
Dr. VRKS, J
it cannot be said that the findings in the enquiry report are
perverse.
13. it is contended that appellate authority failed to consider the
matter in the appropriate perspective and personal hearing was
not afforded to writ petitioner. In this regard, Deokinandan
Sharma V. Union of India(referred supra) is cited. Their
Lordships of the Hon'ble Supreme Court of India held that
appellate and revisional authorities hold a duty to pass reasoned
orders and the orders impugned indicate due consideration of
contentions raised by the aggrieved employee. In the case at
hand, Rule 217 of RPF Rules, 1987 lays down the procedure for
consideration of appeals by the appellate authority. Rule 219
provides for the procedure for consideration of the Revision. As
per Rule 219.2, the procedure prescribed for consideration of
appeals under Rule 217, so far as may be, apply to application for
Revision. Therefore, it is relevant to notice Rule 217.1 which
reads as below: -
"While considering the appeal, the appellate authority may,
on request, grant personal hearing to the aggrieved
enrolled member of the Force in case it considers it in the
interest of administration of justice"
It is never the case of the writ petitioner that he made a
specific request seeking for personal hearing. Even if there was a
request it was well within the discretion of the appellate authority
to grant or negative the same and the sole consideration for
exercising the discretion is the aspect of interest of administration
of justice. There is neither a ground urged in the writ petition nor a
Dr. VRKS, J
point argued here that there was specific request for personal
hearing and it was incorrectly negatived by the appellate authority
and the revisional authority. Thus, the facts indicate that the writ
petitioner was granted opportunity to present his appeal with all
the grounds thereon and he accordingly presented the same and
that was considered by the appellate authority and the same was
disposed of. A perusal of the appellate authority's report shows a
brief mention of four contentions raised in the appeal by the writ
petitioner. It further shows the due application of mind of the
appellate authority as it recorded that the writ petitioner was
supposed to produce the hawker before the officers of the RPF
but he did not do it and he had an ulterior motive and therefore he
avoided it and it further disclosed the inconsistency in the defence
taken by the writ petitioner as to the name of the hawker
apprehended by him as he was telling different names at different
stages of the enquiry. It further indicates due consideration of
family and financial difficulties of the writ petitioner expressed
before him with reference to the measure of punishment. It
categorically mentioned that the evidence of PW.6 and 7 fully
established about the lending of money by the writ petitioner to
unauthorized hawkers and as to why it found no force in the writ
petitioner's contention in that regard. It made a clear mention that
the disciplinary authority followed the rules of procedure and
finally it found no merit in the appeal and therefore it refused to
interfere with the impugned orders therein and accordingly
dismissed the appeal. A perusal of the order of the revisional
authority would go to show a brief description of the case and its
outcome and the rules that were violated by the writ petitioner
Dr. VRKS, J
and the punishment inflicted. It recorded that from the material on
record, it found that the writ petitioner deserted his duty point and
was found elsewhere and he was found quarrelling with hawkers
and his conduct brought adverse publicity to the image of the
Railway Protection Force. It is for those reasons, it refused to
interfere with the impugned orders. One may have to notice that
the disciplinary authority on considering the enquiry report and on
considering the explanation submitted by the writ petitioner
mentioned that the charged officer deserved a deterrent
punishment for the defaults proved against him but still a lenient
view is taken with a hope that he would desist from such defaults
in future. It is in the light of the above facts, this court has to state
that the punishment inflicted is not disproportionate and at any
rate for the proved mis-conduct, the punishment inflicted cannot
be said to be the one that shocks the conscience of the court.
That the orders of the enquiring authority and the appellate
authority and the revisional authority indicate due consideration of
all the rules that are relevant and all the evidence brought on
record and appropriate consideration of the contentions raised by
the charged officer. Therefore, in this judicial review entertained
under Article 226 of the Constitution of India, this court finds no
scope for any interference with the orders impugned.
14. In the result, this writ petition is dismissed.
As a sequel, miscellaneous applications pending, if any,
shall stand closed.
Dr. VRKS, J
_____________________________
Dr. V.R.K.KRUPA SAGAR, J
Date: 18.06.2024
Dvs
Note: -LR Copy may be marked
THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR
Dr. VRKS, J
Date: 18.06.2024
Dvs
