Citation : 2025 Latest Caselaw 5093 Ker
Judgement Date : 13 March, 2025
WP(C) NO.14767/2014 1
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M.
THURSDAY, THE 13TH DAY OF MARCH 2025 / 22ND PHALGUNA, 1946
WP(C) NO.14767 OF 2014
PETITIONER:
N.VIJAYARAGHAVAN
AGED 50 YEARS
S/O.BALAKRISHNAN NAIR, HEAD CONSTABLE (SNP),
RAILWAY PROTECTION FORCE, SOUTHERN RAILWAY,
THRISSUR, RESIDING AT NARAYANI NIVAS,
OLLUR POST, THRISSUR-680306.
BY ADVS.
SRI.T.V.AJAYAKUMAR
KUM.P.H.RIMJU
RESPONDENTS:
1 UNION OF INDIA
REPRESENTED BY THE SECRETARY TO THE GOVERNMENT OF
INDIA, MINISTRY OF RAILWAYS, NEW DELHI-110001.
2 THE CHIEF SECURITY COMMISSIONER
SOUTHERN RAILWAY, HEAD QUARTERS, CHENNAI-600003.
3 THE DEPUTY CHIEF SECURITY COMMISSIONER
SOUTHERN RAILWAY, HEAD QUARTERS, CHENNAI-600003.
4 THE DIVISIONAL SECURITY COMMISSIONER
SOUTHERN RAILWAY, TRIVANDRUM DIVISIONAL HEAD
QUARTERS, THIRUVANANTHAPURAM-695014.
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5 THE ASSISTANT SECURITY COMMISSIONER
SOUTHERN RAILWAY, TRIVANDRUM DIVISIONAL HEAD
QUARTERS, THIRUVANANTHAPURAM-695014.
BY ADVS.
A.DINESH RAO, SC, R2 TO R5
VINU T.V., CGC
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 13.03.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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JUDGMENT
Dated this the 13th day of March, 2025
This Writ Petition is filed by the petitioner, inter alia,
seeking to quash Exts.P6, P12, and P14 by which he was imposed
with a major penalty of compulsory retirement, later modified as a
reduction in rank from the post of head constable to that of
constable for a period of two years with recurring effect.
Brief facts:
2. The petitioner, while working as the Head Constable in
the Railway Protection Force at the Thrissur Railway Station, was
issued Ext.P1, a major penalty memorandum of charges dated
07.06.2007. The charges levelled against him were on two counts:
misbehaving with a lady employee named therein on 12.04.2007
and a list of enumerated repeated minor misconducts. The
statement of imputation contained in Ext.P1 explained the first
charge as unnecessarily interfering with the duties of the lady
commercial clerk deputed to perform duty at the outward parcel
office and misbehaving with her using obscene language. Petitioner
was charged thereunder for discreditable conduct, acting in a
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manner prejudicial to discipline and conducting himself in a manner
which brought discredit to the reputation of the force and
contravention of Rule 146.4, 147(i) and 147(ii) of the Railway
Protection Force Rules, 1987 (RPF Rules, 1987). Second charge,
as against the petitioner, stated that it had been revealed that he
had been perpetrating repeated minor misconduct and had been
accorded penalties on various occasions as per the entries (a) to (g)
enumerated therein, most of which related to unauthorised absence
from duty. One of the said minor charges enumerated therein
related to the petitioner allegedly giving a false telegram stating that
he was hospitalised. It is alleged that without even waiting for the
petitioner's reply, an inspector of the police force was appointed as
an inquiry officer and inquiry proceedings were conducted as
evidenced in Ext.P2. Petitioner had submitted a detailed brief
(Ext.P3) in the said proceedings, without properly considering which,
the inquiry officer submitted Ext.P4 report holding the petitioner
guilty of charges. It is contended by the petitioner that the reasons
given and findings arrived at by the inquiry officer in Ext.P4 were
perverse, biased, pre-concluded and purely based on presumptions
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and surmises. Petitioner accordingly preferred Ext.P5 objection
dated 01.01.2008 to the 4 th respondent, and he was under the bona
fide belief that his case would be considered fairly and in
accordance with law. However, Ext.P6 Penalty Advice dated
14.01.2008 was issued to the petitioner, and he was imposed with
the penalty of compulsory retirement, which came into force with
effect from 15.01.2008. Petitioner preferred Ext.P7 appeal before
the 3rd respondent, Deputy Chief Security Commissioner, which was
rejected by Ext.P8. Petitioner preferred a detailed revision (Ext.P9),
before the 2nd respondent. Since there was no response to Ext.P9
revision preferred by the petitioner, and since he was not being paid
any compulsory retirement pension, he preferred W.P.(C) No. 35268
of 2008, before this Court. This Court allowed the W.P.(C) vide
Ext.P10 judgment and set aside Ext.P8. The matter was remitted
back to the appellate authority with a direction to consider Ext.P7
appeal after affording the petitioner a reasonable opportunity of
being heard. The 3rd respondent afforded the petitioner a personal
hearing on 02.11.2009, during which the petitioner submitted
Ext.P11 written submission. Thereafter, Ext.P12 order was rendered
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by the 4th respondent, holding that the petitioner had not brought out
any evidence that could relieve him of the charges, and he was
found guilty of the charges levelled against him. Aggrieved by the
same, the petitioner preferred Ext.P13 revision before the 2 nd
respondent, which was considered, and Ext.P14 order dated
05.07.2010, was rendered by the 2 nd respondent modifying the
penalty of compulsory retirement to one of reduction in rank from the
post of head constable to that of constable for a period of two years
with recurring effect. Aggrieved by Ext.P14 order, this petition has
been filed by the petitioner inter alia seeking to quash Exts.P6, P12
and P14.
3. The respondents have filed a counter affidavit refuting
the allegations and averments made in the Writ Petition and
contending that the Writ Petition is hopelessly belated and deserves
to be dismissed on the said ground itself. Ext.P14 is dated
28.06.2010, and the Writ Petition was filed only on 10.06.2014, that
is, after a long delay of 4 years. Though an explanation is attempted
to be provided by producing Exts.P15 and P16, the same are not at
all convincing and legally sustainable. It is stated that, pursuant to
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Ext.P14, the petitioner, had rejoined the duty and that the modified
penalty imposed on the petitioner has worked out itself, and hence
the challenge against Ext.P14 and previous orders cannot be
sustained at this distance of time. It is further stated in the counter
affidavit that the petitioner had submitted a mercy appeal, vide his
representation dated 19.12.2011, seeking to reduce the punishment
imposed on him. Since the appellate and revisional remedies had
been exhausted, there was no further provision for appeal, and
accordingly, his said representation was rejected by the 2 nd
respondent vide letter dated 17.01.2012. Thereafter, the petitioner
had submitted a mercy appeal to the Director General of the Railway
Protection Force, New Delhi, through CSC/MAS, seeking to reduce
the punishment imposed on him, pointing out compelling
compassionate circumstances. Since the petitioner had already
exhausted the channels of appeal and revision, the 2 nd respondent
had not considered his mercy appeal. It is stated that the above-
mentioned material facts had been suppressed by the petitioner in
the Writ Petition. It is stated in the counter affidavit that the petitioner
is working as a Head Constable (medically de-categorised and
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charged against supernumerary post) and attached to RPF/ Post at
Thrissur. He was punished for discreditable conduct, acting in a
manner prejudicial to discipline and conducting himself in a manner
which brought discredit to the reputation of the force and also for
repeated minor misconducts. The service register of the petitioner
reveals that he had two major penalties and seven minor penalties
for major misconduct. The disciplinary authority has considered the
matter in proper perspective and in the interest of service. The
penalty was imposed on relevant consideration only, and the same
does not call for any interference. It is also stated that the penalty as
modified by the revisional authority is the most reasonable and
proportionate one, and the allegations of disproportionate penalty
cannot be entertained. An employee of the RPF who has been
found guilty of charges levelled against, cannot be left scot free,
especially considering the nature of the charges levelled and proved
against the petitioner. Therefore, the modified penalty imposed on
the petitioner does not call for any interference and the Writ Petition
is only to be dismissed.
4. Heard Sri.T.V.Ajayakumar, Advocate for the petitioner
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and Sri.T.V.Vinu, CGC for the 1st respondent and Sri.A.Dinesh Rao,
Advocate, Standing Counsel for respondents 2 to 5.
5. Contentions of the petitioner in brief :
● Exts.P6, P12, and P14 are contrary to law and violate the
constitutional guarantees enshrined in Articles 14, 16, and 311
of the Constitution of India.
● The allegation that there has been delay in filing the Writ
Petition is devoid of merits. Delay had been properly explained
by producing Exts.P15 and P16 as had been directed by this
Court along with the detailed affidavit explaining the reasons
for the delay. The same satisfactorily explains the delay in
filing the Writ Petition and hence the contention that the Writ
Petition is hopelessly barred by delay is devoid of merits.
● Rules with respect to limitation are not meant to destroy the
rights of the parties, but to serve a larger public interest and
are founded on public policy. Reliance is placed on the dictum
laid down by the Supreme Court in Rushibhai Jagdishbhai
Pathak v. Bhavnagar Municipal Corporation [(2022) 18
SCC 144].
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● Law recognizes a continuing cause of action which may give
rise to a recurring cause of action, as in the case of salary or
pension. So long as the employee is in service, a fresh cause
of action would arise every month when they are paid their
salary on the basis of a wrong computation made contrary to
the Rules. Thus the contention of delay put forth is not
sustainable.
● The question of condonation of delay is one of discretion and
has to be decided on the basis of the facts of the case at
hand. No hard and fast rule can be laid down as to when the
High Court should refuse or exercise its jurisdiction in favour of
a party who moves it after considerable delay and is otherwise
guilty of latches. In the event that the claim made by the
applicant is legally sustainable, delay should be condoned.
Delay and laches is not a constitutional limitation and if the
course of action is continuous discretion to condone the delay
could be exercised duly when the situation certainly shocks
judicial conscience. Reliance is also placed on the dictum laid
down by the Hon'ble Supreme Court in Tukaram Kana Joshi
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and others v. Maharashtra Industrial Development
Corporation and others [(2013) 1 SCC 353] wherein the
question of delay and laches was considered and it was held
that the court is required to exercise judicial discretion and the
discretion is dependent on the facts and circumstances of the
case.
● Ext.P6 order of penalty has been rendered without a proper
application of mind, and the same is not based on evidence on
record. Ext.P6 suffers from errors of law and facts apparent on
the face of record. Ext.P12, appellate order and Ext.P14,
revisional order passed in furtherance of Ext.P6 are also liable
to be set aside.
● Charge No.2 in Ext.P1 charge memo cannot be termed as
misconduct at all. It only shows a list of penalties, most of
which ended in a penalty of censure spread over a period of
17 years of the petitioner's service.
● Charge No.2 does have no relevance whatsoever to the
incident in question and all charges relate to a few days of
unauthorized absence for reasons beyond the petitioner's
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control. Imposition of penalty based on the findings of Charge
No.2 by the disciplinary authority for an offence totally
unrelated to the first charge is not in conformity with law and
hence unsustainable.
● The allegation against the petitioner in charge No.1 of the
charge memo that he had misbehaved with a commercial clerk
using obscene language is not revealed by evidence on
record. There is no case revealed of an obscene language
being used by the petitioner, nor is there any case of specific
nature of the misbehaviour shown against the concerned
commercial clerk. There is no specific finding in this regard in
Ext.P6, order of the Disciplinary Authority. Ext.P6 is therefore
liable to be interfered with by this Hon'ble Court.
● Ext.P6 lacks any specific finding on the guilt by the disciplinary
authority. The disciplinary authority had proceeded to impose
a penalty stating that the petitioner had not proved his
innocence. Ext.P6 and therefore Exts.P12 and P14 are hence
liable to be interfered with.
● Charges levelled against the petitioner are vague, indefinite,
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ambiguous and incapable of proper defence. Allegation that
the petitioner had misbehaved with a lady employee by using
obscene language does not provide any details regarding the
expressions allegedly made by the petitioner to constitute
obscene language. There is no indication regarding the same
in the evidence also. No details are given and no other
particulars are also furnished. Therefore, it is clear that the
charges are too vague and capable of stretching by allegedly
affected parties to any extent of their imagination. Reliance is
placed on the dictum laid down by the Hon'ble Supreme Court
in Anil Gilurker v. Bilaspur Raipur, Kshetriya Gramin Bank
and another [(2011) 14 SCC 379] and Government of
Andhra Pradesh and others v. A.Venkata Raidu [(2007) 1
SCC 338].
● No 'offence' as understood in law had been alleged or made
out against the petitioner in the charge sheet or in the
proceedings that followed based on the same. The Hon'ble
Supreme Court in Jawala Ram and others v. State of Pepsu
and others [AIR 1962 SC 1246] had considered the scope of
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the term 'offence' as used in Article 20 (2) of the Constitution
and had held that the said word used in several clauses of
Article 20 must be understood to convey the meaning given to
it in Section 3(37) of the General Clauses Act which defines an
offence to mean 'an act or omission made punishable by any
law for the time being in force'.
● The grounds on which it is proposed to take action ought have
to be reduced to the form of a definite charge or charges
which have to be communicated to the person charged
together with a statement of the allegations on which each
charge is based and any other circumstance which is
proposed to be taken into consideration in passing orders has
also to be stated. This requirement had not been complied
with in the case of the petitioner.
● Relying on the dictum in Surath Chandra Chakrabarty v.
State of West Bengal [(1970) 3 SCC 548], it is contended that
when the charges levelled against the delinquent officer in the
charge sheet are vague and not specific, the entire enquiry is
vitiated. This Rule embodies a principle that a reasonable and
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adequate opportunity for defending oneself should be
afforded. If a person is not told entirely and definitely what the
allegations against him are, on which the charges preferred
against him are founded, he cannot possibly by projecting his
own imagination, discover all the facts and circumstances that
may be in the contemplation of the authorities to be
established against him. Principles of natural justice demands
that charges should be specific, definite, and giving details of
the incident which formed the basis of the charges, and no
inquiry can be sustained on vague charges. The Hon'ble
Supreme Court had in the said case held that the employee
who had been subjected to such a vague inquiry will be
entitled to a compensation of Rs.1.5 Lakhs in lieu of the
arrears of his salary. The ratio therein applies to the benefit of
the petitioner.
● Ext. P1 charge sheet lacks the basic requirements needed to
enable the petitioner to effectively defend the same. Reliance
is placed on the dictum laid down by a Division Bench of this
Court in Karunakaran v. Zamorin Raja of Calicut, [2019 (4)
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KLT 244] wherein it had been held that the object of requiring
the employer to present a charge sheet with a degree of
precision containing a disclosure of the circumstances of the
case which are alleged to constitute misconduct is to enable
the charge-sheeted employee to have a real opportunity of
defending himself.
● Without clarity regarding the details of the obscene language
allegedly used by the petitioner against the concerned women
employee, no charge sheet could have been maintained. To
ask the petitioner to defend himself against a general
allegation of misconduct without specification of particulars,
denies him an effective right of defending himself.
● The words 'misbehave' and 'obscene' as used in Ext.P1
charge sheet are open ended terms that lack clarity and
precision. Such nebulous terms when used in a charge sheet
ought to be qualified and explained to bring them close to the
contextual meaning intended. Reliance is placed on the
meanings of the said words in Oxford Advanced Learner's
Dictionary of Current English (8 th Edn.), Black's Law Dictionary
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(6th Edn.) and P.Ramanatha Aiyar's Advanced Law Lexicon
(4th Edn. Vol 3) ,
● Petitioner who is called upon to defend himself must know
what he has to defend against. What the petitioner is to defend
himself against has to be discernible from the charge sheet
which is issued to him. Charge sheet like Ext.P1 is replete with
a great potential of mischief because if such charge sheets are
allowed to stand, it would be open to the employer to lead any
and every kind of evidence during the course of departmental
inquiry on the basis of vague and undefined allegations of
misconduct. This would be a travesty of fairness and
reasonableness and would lead to a grave miscarriage of
justice. The requirement that the charge sheet must be precise
and must contain a statement of imputations constituting the
foundation of misconduct is a basic principle of natural justice.
Natural justice in a disciplinary inquiry must mean that the
employee must have notice of the charges, first and foremost.
This is a fundamental stipulation and the non-compliance of
which would vitiate the inquiry. Ext.P1 and all proceedings that
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followed are thus illegal and unsustainable.
● Ext.P12 appellate order is not based on any findings nor is it
based on any evidence on record. The person examined as
witness number PW3 was included by the enquiry officer
without notice to the petitioner. Such a witness was not listed
in the charge memo. Though an allegation that the petitioner
had slapped the said witness in the melee that followed the
alleged misbehaviour with the female clerk was initially put
forth, the same was not pursued. The said slapping story was
not part of Ext.P1 charge. Attempts towards constantly
improving the story were thus made at every stage of the
proceedings against the petitioner. Ext.P12 order is therefore
based on irrelevant and extraneous considerations.
● The disciplinary, appellate and revisional authorities ought to
have found that the entire proceedings are in violation of the
principles of natural justice and that the inclusion of additional
witnesses without being listed by the disciplinary authority has
resulted in substantial prejudice to the petitioner in defending
the case. Exts.P6, P12 and P14 are hence unsustainable in
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law.
● Though the petitioner had categorically stated in the appeal
and revision that the inquiry officer was very much biased and
prejudiced against the petitioner on account of previous
enmity, the details of which had been clearly narrated by the
petitioner, the same was not considered by the appellate and
revisional authorities.
● Petitioner had clearly submitted that on the relevant day, he
was on sick list on account of fracture to his right hand and the
details thereof had been submitted before the inquiry officer.
The evidence of the defense witness also proved that the
petitioner was not available on the spot. However, the
disciplinary authority rejected the evidence of the defense
witness in a very casual manner as reflected in Ext.P6 order
under challenge.
● Petitioner contends that there had been no misconduct on his
part and that clubbing of charges number 1 and 2 which are
totally unrelated and imposing a penalty on of compulsory
retirement on the petitioner is done with ulterior motive and
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based on extraneous factors.
● Report of the enquiry officer is perverse, biased and pre-
concluded and not based on evidence of record. The entire
inquiry was also conducted in violation of the principles of
natural justice and for this reason, the report of the enquiry
officer is unsustainable. The penalty, advice, appellate and
provisional orders based on the inquiry report suffer from
absolute absence of application of mind and negation of
constitutional guarantees enshrined in Article 14, 16 and 311.
● Penalty imposed is highly disproportionate to the offences
alleged. The scope of interference by the High Court in the
exercise of its writ jurisdiction with respect to disciplinary
proceedings has been laid down by the Supreme Court in
Director General of Police, Railway Protection Force and
others v. Rajendra Kumar Dubey [(2021) 14 SCC 735]. This
Court thus has jurisdiction to set aside the orders impugned.
● Reliance is placed on the dictum laid down by the Hon'ble
Supreme Court in State of Odisha v. Satish Kumar
Ishwardas Gajbhiye and others [(2021) 17 SCC 90] and
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contended that the preliminary inquiry was unjustified as there
was no provision for it in the All India Services (Discipline and
Appeal) Rules, 1969. Hence the respondents could not have
conducted a preliminary enquiry without notice to the
petitioner. Thus the inquiry conducted is itself vitiated.
● Reliance is placed on the dictum laid down in State of
Jharkhand v. Lalu Prasad Yadav @ Lalu Prasad [AIR 2017
SC 3389] wherein it has been held that no person shall be
prosecuted and punished for the same offence more than
once as this amounts to double jeopardy which has been
prohibited under Article 20 (2) of the Constitution, the objective
of which is to avoid harassment which may be caused by
successive criminal proceedings where the person has
committed only one crime. This applies to the disciplinary
proceedings initiated against employees also. It is contended
that the petitioner has been punished twice for the offences
alleged against him, as charge number 2 in the charge memo
had already been visited with penalty of censure and hence
could not have been agitated.
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● The Hon'ble Supreme Court in Laxman Singh v. Union of
India and others [(2021) 8 SCC 479] had taking note of the
departmental inquiry initiated against the appellant in the said
case which was for his alleged failure in preventing theft of
railway property, wherein the appellant was found guilty of
gross negligence in discharge of duties, reduced the penalty of
reduction of time scale of Rs.200/- for a period of two years
with cumulative effect terming it as unjustified and had held
that the appellant would be entitled to all retirement benefits in
accordance with the rules. The same dictum applies to the
factual situation of the petitioner's case also.
● Reliance is placed on the dictum laid down by the High Court
of Calcutta in Brahma Pandey alias B. Pandey v. Union of
India [(2006)SCC OnLine Cal703] wherein the High Court had
taken note of the dictum laid down in V.K.Khanna v. State of
Punjab [AIR 2001 SC 343] wherein it was observed that,
when the inquiry officer in his inquiry report gave a finding, but
did not disclose reasons and this constitutes bias. It is settled
position of law that when a quasi judicial authority passes an
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order it must be backed by reasons and in case the inquiry
finding is not based on reasons, such finding does not get any
leg to stand on. No valid and tenable reason had been stated
in the impugned orders and hence the same is hit by the
dictum mentioned above.
6. Contentions of the respondents in brief:
● Exts.P6, P12, and P14 are valid, rendered in accordance with
law and do not call for any interference.
● Ext.P6 Penalty Advice had been issued by the Disciplinary
Authority after carefully scrutinising the DAR proceedings.
● During the course of the inquiry, the lady employee, who was
a commercial clerk subjected to misbehaviour by the
petitioner, had been examined as PW2. She had specifically
deposed that the petitioner had on the relevant day come to
the parcel office and had misbehaved and threatened her. It
was also deposed that when another commercial clerk tried to
intervene, the petitioner had manhandled him. The lady clerk
had reported the matter to the station-master on duty and the
chief parcel supervisor. The evidence of the said witness
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remains uncontroverted.
● The punishment of compulsory retirement which was issued
on 14.01.2008 was modified by the Revisional Authority and
the petitioner had been reinstated in service by reducing the
rank from head constable to constable for a period of two
years with recurring effect. The period of modified punishment
was exhausted on 05.07.2012.
● Petition was issued with a major penalty charge sheet under
Rule 153 in which the disciplinary authority can nominate any
inspector as inquiry officer even without waiting for
delinquent's reply. The procedure adopted is in accordance
with the provisions contained in Rule 153.2 (a) of the RPF
Rules 1987 and there has been no violation of the mandates
of the Rules.
● The petitioner had in the course of the inquiry stated that he
has no objection to the person appointed as enquiry officer
viz., Sri.K.P.James in conducting the inquiry and the same had
been duly recorded. He had also expressed satisfaction over
the inquiry and hence the allegation that the inquiry was
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conducted in a most arbitrary and illegal manner and that the
enquiry officer is biased are incorrect, unfounded and
baseless.
● The inquiry officer had conducted the inquiry in compliance
with all the procedural requirements and natural justice
principles. The charges against the petitioner were found
proved. The Disciplinary Authority had, after complying with
the due formalities, agreed with the findings of the inquiry
officer and awarded the penalty of compulsory retirement,
which was subsequently modified to one of very less rigour.
There is no basis, cause or legally sustainable reason to
challenge the same.
● The appeal as well as the revision preferred by the petitioner
had been rejected after a detailed and meaningful
consideration, and the petitioner had been paid his due
pensionary benefits. The Writ Petition that has been filed after
this huge delay is only a chance litigation initiated by the
petitioner without any bona fides.
● The revisional authority had viewed the case of the petitioner
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sympathetically and had reinstated the petitioner in service
modifying the penalty of compulsory retirement to reversion
from Head constable to constable, i.e., from grade pay of
Rs.2,800/- to Rs.2,000/- for a period of two years recurring
and the period spent out of service was treated as dies-non.
The revisional authority had thus taken into account all the
aspects of the case and it is thereafter that the penalty had
been modified. The petitioner cannot have any legally
sustainable grievance after the same.
● During the entire service the petitioner in force was punished
seven times which included Censure (five times), reduction of
pay (one time), withholding of annual increment (one time). He
was also punished for misbehaving with the superior officers in
an intoxicated condition on 07.03.1993. Petitioner had on
09.06.1997, abused the Sub Inspector/RPF/Trichur by using
vulgar words and also challenged the sub-inspector when
refused to give him a sick memo.
● There cannot be a re-appreciation of the evidence tendered
before the inquiry officer and this is not the appellate authority
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in disciplinary proceedings. Reliance is placed on the dictum
laid down by the Supreme Court in Union of India v. P
Gunasekaran [AIR 2015 SC 545]
● The contention that the charge sheet was vague insofar as the
obscene language as used by the petitioner had not been
elaborated therein is devoid of merits and unsustainable. The
qualifying words 'obscene', 'vulgar', 'unparliamentary' etc.
which are used preceding the word language are all used to
denote unrefined and indecent language which was used by
the petitioner against the women employee.
● Petitioner had not raised any contention regarding vagueness
of charge regarding obscene language in the course of the
inquiry. He cannot thus raise the same for the first time in the
Writ Petition.
● The deposition of the lady employee with whom the petitioner
had misbehaved has not been assailed. She had very
categorically and unequivocally deposed in the inquiry that the
petitioner had misbehaved with her. The totality of the
evidence adduced in the inquiry was sufficient to hold the
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petitioner guilty and there is no reason to interfere with the
penalty imposed on the petitioner.
● The penalty imposed is not open for review by the High Court
under Article 226. Reliance is placed on the dictum laid down
by the Supreme Court in B.C.Chaturvedi and others v.
Union of India, [AIR 1996 SC 484]. The disciplinary authority
and on appeal the appellate authority being fact-finding
authorities have exclusive power to consider the evidence with
a view to maintain discipline. They are invested with their
discretion to impose appropriate punishment keeping in view
the magnitude and gravity of the misconduct. The High Court
while exercising the power of judicial review cannot normally
substitute its own conclusion on penalty and impose some
other penalty.
● If the punishment imposed by the disciplinary authority or the
appellate authority shocks the conscience of the High Court, it
could appropriately mould the relief either directing the
disciplinary public appellate authority to reconsider the penalty
imposed or to shorten the litigation itself in exceptional and
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rare cases impose appropriate punishment with cogent
reasons in support thereof.
● The contention of the petitioner that double jeopardy is
attracted is not maintainable since, all that was done was to
take note of the past conduct of the delinquent employee
which relevance and bearing to the enquiry. Reliance is placed
on the dictum laid down by the Hon'ble Supreme court in
Central Industrial Security Force and others v. Abrar Ali
[(2017) 4 SCC 507] wherein it was held that double jeopardy
will not be attributed when the desirability of continuance of
the respondent was considered on the basis of his past
contact.
● The Hon'ble Supreme Court had in Union of India v.
Bishamber Das Dogra [(2009) 13 SCC 102] considered the
question whether the past conduct of the delinquent employee
could be taken into consideration for the purpose of deciding
the punishment. After a survey of the precedents on the point,
it was held by the Hon'ble Supreme Court that it is desirable
that the delinquent employee may be informed by the
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disciplinary authority that his past conduct would be taken into
consideration while imposing the punishment. But in case of
misconduct of grave nature or indiscipline, even in absence of
statutory rules, the authority may take into consideration the
indisputable past conduct/ service record of the employee for
adding weight to the decision of imposing punishment if facts
of the case so require. The Hon'ble Supreme Court had also
termed as settled, legal proposition that habitual absenteeism
constitutes gross violation of all discipline.
● The contention of the petitioner that the evidence was not
properly appreciated by the inquiry officer and that the
deposition of the evidence tendered by the witness from the
side of the petitioner was not properly appreciated is
unsustainable. DW1 and DW2 examined from the side of the
petitioner are none other than the Mother in law and wife of
the petitioner. Nevertheless, their deposition had been duly
considered and was given due credit that it was worthy of.
● The contention that the name of the witness PW3 was
included without notice and not listed in the charge memo is
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not correct. In the charge memo, it has been clearly mentioned
in the list of witnesses, serial number 4, that any other witness
as desired by the EEO could be examined, provided the
person could positively contribute to the proceedings. The
same was done in accordance with the provisions contained in
Rule 153.17. The petitioner had not raised any objection to the
inclusion and examination of PW3 during the course of the
inquiry.
● Having participated in the inquiry, including the inclusion and
examination of PW3 without any demur, the petitioner is not
entitled to challenge the same. The said contention put forth is
hit by estoppel and acquiescence as the same had not been
raised by the petitioner in the written submission given to the
inquiry officer or in the defense statement submitted before the
disciplinary authority.
● It is settled that in an inquiry, strict and sophisticated rules of
evidence under the Indian Evidence Act do not apply.
Reliance is placed on the dictum laid down by the Hon'ble
Supreme Court in Union of India and others v. Dilip Paul
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[2023 SCC OnLine SC 1423] that it is open to the adjudicating
authority to accept, rely and evaluate any evidence having
probative value and come to its own conclusion, keeping in
mind judicial approach and objectivity, exclusion of extraneous
material and observance of the rules of natural justice and fair
play.
● The strict and technical rules of evidence and procedure does
not apply to departmental inquiry, the connotation 'evidence'
cannot be understood in a narrow technical sense as to
include only that evidence adduced in a regular court of law
when a person is examined as a witness by administering
oath. It has been held by the Hon'ble Supreme Court in Dilip
Paul's case (supra) that there should not be any allergy to
hearsay evidence provided it has a reasonable nexus and
credibility.
● Petitioner was a member of a disciplined police force and was
governed by the rules in force. Rule 146.1 stipulates that all
members of the Force irrespective of their ranks shall submit
themselves to the requirement of code of behaviour prescribed
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both on duty and off duty. Petitioner's complicity has been
proved in the course of the inquiry and he has been charged
for discreditable conduct, acting in a manner prejudicial to the
discipline and conducting himself in a manner which brought
discredit to the reputation of the force and also for repeated
minor misconducts. Both charges levelled against the
petitioner were proved convincingly and beyond doubt. The
penalty was imposed for the charges alleged and proved
against the petitioner. The disciplinary, appellate and judicial
authorities have duly considered the contentions raised by the
petitioner against the inquiry report. This Writ Petition filed
long thereafter is hence devoid of any merits and is only to be
dismissed.
Discussion and Analysis:
7. The scope of interference by a High Court in exercise of
jurisdiction with respect to disciplinary proceedings is no longer res
integra. The Hon'ble Supreme Court in State of Rajasthan and
others v. Heem Singh [(2021) 12 SCC 569] summed up the law in
the following words:
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"In exercising judicial review in disciplinary matters, there are two ends of the spectrum. The first embodies a rule of restraint. The second defines when interference is permissible. The rule of restraint constricts the ambit of judicial review. This is for a valid reason. The determination of whether a misconduct has been committed lies primarily within the domain of the disciplinary authority. The judge does not assume the mantle of the disciplinary authority. Nor does the judge wear the hat of an employer. Deference to a finding of fact by the disciplinary authority is a recognition of the idea that it is the employer who is responsible for the efficient conduct of their service. Disciplinary enquiries have to abide by the rules of natural justice. But they are not governed by strict rules of evidence which apply to judicial proceedings. The standard of proof is hence not the strict standard which governs a criminal trial, of proof beyond reasonable doubt, but a civil standard governed by a preponderance of probabilities. Within the rule of preponderance, there are varying approaches based on context and subject. The first end of the spectrum is founded on deference and autonomy - deference to the position of the disciplinary authority as a fact finding authority and autonomy of the employer in maintaining discipline and efficiency of the service. At the other end of the spectrum is the principle that the court has the jurisdiction to interfere when the findings in the enquiry are based on no evidence or when they suffer from perversity. A failure to consider vital evidence is an incident of what the law regards as a perverse determination of fact. Proportionality is an entrenched feature of our jurisprudence. Service jurisprudence has recognized it for long years in allowing for the authority of the court to interfere when the finding or the penalty are disproportionate to the weight of the evidence or misconduct. Judicial craft lies in maintaining a steady sail between the banks of these two shores which have been termed as the two ends of the spectrum. Judges do not rest with a mere recitation of the hands-off mantra when they exercise judicial review. To determine whether the finding in a disciplinary enquiry is based on some evidence an initial or threshold level of scrutiny is undertaken. That is to satisfy the conscience of the court that there is some evidence to support the charge of misconduct and to guard against perversity. But this does not allow the court to re- appreciate evidentiary findings in a disciplinary enquiry or to substitute a view which appears to the judge to be more appropriate. To do so would offend the first principle which has been outlined above. The ultimate guide is the exercise of robust common sense without which the judges' craft is in vain." (Emphasis added)
2025:KER:33736
8. The Hon'ble Supreme Court has in Director General
of Police, Railway Protection Force (supra), has also laid down
the aspects that would open for the High Court to look into as
follows:
"(a) The inquiry is held by the competent authority;
(b) The inquiry is held according to the procedure prescribed in that behalf;
(c) There is violation of the principles of natural justice in conducting the proceedings;
(d) The authorities have disabled themselves from reaching a fair conclusion by some considerations which are extraneous to the evidence and merits of the case;
(e) the authorities have allowed themselves to be influenced by irrelevant and extraneous considerations;
(f) the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusions
(g) the disciplinary authority had erroneously failed to admit the admissible and material evidence;
(h) The disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;
(i) The finding of fact is based on no evidence."
Thus it is trite and settled that in exercise of its powers under Article
226 and 227 of the Constitution of India, this Court shall not venture
into re-appreciation of the evidence. Having thus reminded myself of
the scope and extent of jurisdiction, I now proceed to consider the
contentions put forth by the parties.
9. The primary objection put forth by the petitioner is that
Ext.P1 charge sheet is 'vague' and 'imprecise' since the term
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'obscene language' used therein had not been explained or clarified
enough, so as to enable the petitioner to defend the same
effectively. It is relevant to note that such an objection had not been
raised by him hereto before at any stage of the proceedings and is
being raised for the first time in this Writ Petition. I note that the
charge sheet had very specifically and clearly elaborated on the
charge by stating as the first charge the incident of petitioner
misbehaving with the lady Commercial Clerk, Parcel Office, Thrissur
on 12.04.2007 whose name had been specified in the Charge sheet.
Thereafter, the charge sheet was further proceeded to explain in the
statement of imputation part, the specifics of the incident by
mentioning that the petitioner who was under sick list had on
12.04.2007 come to the parcel office at Thrissur at about 23:30
hours without any valid reason and had unnecessarily interfered with
the duties of the lady commercial clerk deputed to perform the
outward parcel office and had misbehaved with her using obscene
language. With so much of details specifically provided and
explained in the charge sheet, the petitioner cannot now take up the
contention that the word obscene language had not been explained
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in the chart sheet and hence the charge sheet in its entirety is
'vague' thereby disabling the petitioner from effectively contesting/
challenging the same. In the course of the inquiry, the lady
employee who was examined as PW2 had specifically deposed that
the petitioner had on the relevant day come to the parcel office and
had misbehaved and threatened her. It was also deposed that, when
another commercial clerk who tried to intervene was manhandled by
the petitioner. The lady clerk had also reported the matter to the
station-master on duty and the chief parcel supervisor. The
petitioner who has not been able to controvert the evidence of the
said witness cannot be now heard to content that the charge sheet
was vague and imprecise.
10. The reliance placed on the dictionary meaning and
definition of the terms 'misbehave' and 'obscene' and the attempt to
explain that the same could have meanings of various hues and
colors thus leading to a confusion and vagueness as what was
intended in the context in which those words were used in the
charge sheet does not assist the case of the petitioner since such
such nuances in semantics have no place in construing the validity
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of disciplinary proceedings. In this context, I find merit in the reliance
placed in this respect by the respondents on the dictum in Dilip
Paul's case (supra) that the connotation 'evidence' cannot be
understood in a narrow technical sense as to include only that
evidence adduced in a regular court of law and the kind of
elaborateness and precision in such regular court proceedings need
not be insisted on in disciplinary proceedings.
11. Petitioner has alleged bias and prejudice as against
the enquiry officer on account of previous enmity and have
contended that the same vitiated the proceedings. Though it is
alleged that the enquiry officer had earlier made a false complaint
against the petitioner in the year 1997, alleging that the petitioner
had misbehaved with him and based on the complaint the petitioner
had been punished at that point of time, and thus the enquiry officer
was a biased judge and ought not have sat as an inquiry officer,
none of these contentions have apparently been raised by the
petitioner at any stage of the proceedings, either before the enquiry
officer nor before the appellate and revisional authorities. Nothing to
the said effect has been produced before me. On the other hand, it
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is the specific case of the respondents that the petitioner had, in
writing, expressed his satisfaction with the manner in which the
inquiry proceedings had been conducted and no objection or
reservation whatsoever had been raised by the petitioner in the said
respect hereto before. Hence I find no merit in the contention that
the enquiry officer was biased or prejudiced against the petitioner.
12. The next contention of the petitioner, is that the
person examined as PW3 was included by the enquiry officer
without notice to the petitioner and such a witness was not listed in
the charge memo. Thus according to the petitioner irrelevant
considerations and extraneous considerations had crept in and this
aspect was overlooked by the Appellate authority and the revisional
authority. However, the contention of the enquiry officer having
illegally relied on the deposition of PW3 is also devoid of
sustainability. It is settled as laid down in Dilip Paul's case (supra)
that it is open to the adjudicating authority to accept, rely and
evaluate any evidence having probative value and come to its own
conclusion, the rules of natural justice and fair play are observed. I
find merit in the contention put forth by the respondent that in the
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charge memo, it had been clearly mentioned in the list of witnesses,
serial number 4, that any other witness as desired by the enquiry
officer could be examined, provided the person could positively
contribute to the proceedings. The same was done in accordance
with the provisions contained in Rule 153.17. The petitioner had not
raised any objection to the inclusion and examination of PW3 during
the course of the inquiry. Having participated in the inquiry, and in
the examination of PW3 without any demur, the petitioner cannot be
heard to challenge the same upon realising that the final decision is
not in his favour. Thus the allegation that extraneous contentions
weighed with the enquiry officer is devoid of merits.
13. Clubbing of Charge 1 and Charge 2 which are alleged
to be totally unrelated is the next serious objection raised by the
petitioner. While Charge No.1 concerned the misbehaviour of the
petitioner with a female commercial clerk using obscene language,
Charge No.2 was a list of penalties, mostly for unauthorised
absence, much of which had ended in a penalty of censure spread
over a period of 17 years of the petitioner's service. Hence it is
contended that Charge No. 2 cannot be termed as misconduct at all.
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Imposition of penalty based on the findings of Charge No.2 by the
disciplinary authority for an offence totally unrelated to the Charge
No.1 is termed as not in conformity with law and hence
unsustainable. On this point, in Ext.P6 it has been very specifically
stated that both the charges are independent and mutually exclusive
and that there is no hard and fast rule suggesting that all the
charges in a charge sheet should be interconnected. I find merit in
the explanation and further note that no prejudice whatsoever had
been caused to the petitioner on the said count.
14. The 'Principle of test of prejudice in Service
jurisprudence' referred to by the Supreme Court in Dilip Paul's case
(supra) affirmatively relying on the dictum laid down in State Bank
of Patiala and others v. S.K. Sharma [(1996) 3 SCC 364] has held
that the test is to ascertain whether the violation of any procedure or
process resulted in a prejudice being caused or resulted in a loss of
fair hearing. The only question is whether any prejudice can be
stated to have been caused to the petitioner due the manner in
which the proceedings leading to Exts.P6, P12 and P14 were
conducted by the respondents. I have considered the question
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whether any serious prejudice has been caused to the petitioner due
the manner in which the disciplinary proceedings were undertaken
and the appellate and revisional orders were passed. It is not in
dispute that the petitioner was provided with the copies of the
proceedings and it is also not in dispute that the petitioner was
aware of the nature of the allegations leveled against him. It is also
not in dispute that ample opportunity was given to the petitioner to
meet the allegations levelled. It cannot be terms on the facts and
circumstances as revealed by records that the petitioner was taken
by surprise. It is also relevant to note that in Ext.P14 order issued by
the 2nd respondent dismissing the revision filed by the petitioner it
has been clearly stated that though the revisional authority fully
agreed with the orders of the appellate authority imposing
punishment, taking note of the fact that the petitioner had pleaded
for mercy, explaining his family circumstances, education of his two
daughters and financial crisis faced by him and his family due to his
employment etc., leniency was shown. Taking note of the fact that
the petitioner has about 13 years of service and the predicament of
his family, his case was sympathetically viewed by the revisional
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and he was given an opportunity to rectify himself by modifying the
punishment of compulsory retirement and reinstating him in service
by reducing his rank.
15. It is also relevant to note here that respondents have
stated that before the filing of this Writ Petition, the petitioner had
submitted a mercy appeal seeking to reduce the punishment
imposed by him, and had thereafter again submitted another mercy
appeal to the Director General RPF New Delhi, seeking again to
reduce the punishment. The said facts, which could probably have
been the reason for the delay in filing the Writ Petition, which was
done only after acquiescing to the Ext.P14 order was not revealed in
the Writ Petition. It is also submitted that the petitioner had opted for
VRS and thus himself opted out from service subsequent to his
reinstatement per Ext.P14.
16. As discussed above, no case has thus been made out
by the petitioner to quash Exts.P6, P12 and P14 by issuance of a
writ of certiorari. Petitioner is also not entitled to any other relief
sought in the Writ Petition. I find that the proceedings against the
petitioner had been conducted by the respondents in accordance
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with law and the decision thus arrived at is valid and legally
sustainable. The Writ Petition thus has to fail.
Conclusion
17. In view of the above discussion, I do not find any
reason to interfere with Exts.P6, P12 and P14 orders.
This Writ Petition is dismissed. No costs.
Sd/-
SYAM KUMAR V.M. JUDGE csl
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APPENDIX OF WP(C) 14767/2014
PETITIONER'S EXHIBITS
EXT.P1 A TRUE COPY OF MAJOR PENALTY MEMORANDUM OF CHARGES BEARING NO.VXP/227/153/02/07 DATED 07-06-2007, ISSUED BY THE 5TH RESPONDENT.
EXT.P2 A TRUE COPY OF PROCEEDING OF DAR ENQUIRY CONDUCTED ON DIFFERENT DATES.
EXT.P3 A TRUE COPY OF DETAILED BRIEF ADDRESSED TO THE INQUIRY OFFICER AND THE INSPECTOR OF PROTECTION FORCE, ERNAKULAM.
EXT.P4 A TRUE COPY OF LETTER BEARING NO.
VXP/227/153/02/07 DATED 18-12-2007 ISSUED BY THE 4TH RESPONDENT.
EXT.P5 A TRUE COPY OF OBJECTIONS DATED 01-01-2008, SUBMITTED TO THE 4TH RESPODNENT.
EXT.P6 A TRUE COPY OF PENALTY ADVICE BEARING NO.
VXP/227/153/01/06 DATED 14-01-2008, ISSUED BY THE 4TH RESPONDENT.
EXT.P7 A TRUE COPY OF DETAILED APPEAL SUBMITTED BEFORE THE 3RD RESPONDENT DEPUTY CHIEF SECURITY COMMISSIONER.
EXT.P8 A TRUE COPY OF THE PROCEEDINGS NO. NIL DATED 26-03-2008, ISSUED BY THE 3RD RESPONDENT.
EXT.P9 A TRUE COPY OF DETAILED REVISION PETITION DATED 17 DEC 2008, ADDRESSED TO THE 2ND RESPONDENT.
EXT.P10 A TRUE COPY OF JUDGMENT IN WPC NO.
35268/2008 DATED 18 JUN 2009 RENDERED BY
THIS HON'BLE COURT.
EXT.P11 A TRUE COPY OF SUBMISSION DATED 02-11-2009
TO THE 3RD RESPONDENT.
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EXT.P12 A TRUE COPY OF COMMUNICATION BEARING NO.
VXP/227/153/02/07 DATED 29-01-2010 ISSUED FROM THE OFFICE OF THE 4TH RESPONDENT.
EXT.P13 A TRUE COPY OF REVISION PETITION IN THE FORM AN AFFIDAVIT DATED 13-04-2010, SUBMITTED ALONG WITH A COVERING LETTER ADDRESSED TO THE 2ND RESPONDENT.
EXT.P14 A TRUE COPY OF THE REVISIONAL ORDER BEARING NO.VXP/227/153/02/07 DATED 05-07-2010 COMMUNICATED BY THE 4TH RESPONDENT.
EXT.P15 A TRUE COPY OF THE DISCHARGE CERTIFICATE ISSUED BY THE RAILWAY DOCTORS BEARING NO.286378 DATED 13.10.2011 INDICATING THE FACTUM OF TREATMENT FROM 31.03.2011 TO 12.10.2011.
EXT.P16 A TRUE COPY OF LETTER NO.V/MD.84/I/UF DATED 13.10.2011 ISSUED BY THE CHIEF MEDICAL SUPERINTENDENT/SOUTHERN RAILWAY, THIRUVANANTHAPURAM.
EXT.P17 TRUE COPY OF RULE 1343 OF THE INDIAN RAILWAY ESTABLISHMENT CODE VOL.II, 2005 EDITION
EXT.P15 TRUE COPY OF THE LETTER DATED 3.9.2010 OF SR.DIVISIONAL MEDICAL OFFICER, SOUTHERN RAILWAY, THRISSUR ADDRESSED TO THE CHAIRMAN, THRISSUR HEART HOSPITAL
EXT.P16 TRUE COPY OF THE LETTER DATED 13.10.2011 ISSUED BY THE CHIEF MEDICAL OFFICER/TVC OF DIVISIONAL OFFICE, MEDICAL BRANCH OF SOUTHERN RAILWAY TO THE PETITIONER
EXT.P17 TRUE COPY OF THE MERCY APPEAL DATED 17.12.2011 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT
EXT.P18 True copy of the letter dated 23-1-2012 of the Divisional Security Commissioner, RPF Trivandrum addressed to the petitioner.
2025:KER:33736
EXT.P19 True copy of the letter dated 21-3-2014 issued by the Assistant Security Commissioner, RPF to the petitioner.
EXT.P20 True copy of the intimation dated 8-7-2014 issued by the Assistant Security Commissioner, RPF, Trivandrum to all IPF and TVC division
EXT.P21 True copy of the letter dated 18-7-2017 submitted by the petitioner to the Divisional Security Commissioner, RPF, Trivandrum.
EXT.P22 True copy of the letter dated 25-7-2017 issued by the Divisional Security Commissioner, RPF, Trivandrum to the petitioner.
EXT.P23 True copy of the representation dated 19-7- 2023 submitted by the petitioner before the Director General of RPF.
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