Telangana High Court
M. Sudhakar vs Union Of India, on 6 September, 2024
Author: Nagesh Bheemapaka
Bench: Nagesh Bheemapaka
HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA
WRIT PETITION No. 21075 OF 2012
ORDER:
Petitioner, while working as a constable in Railway
Protection Force (CON.306-DR-Bezwada) at Printing Press
Secunderabad - Hyderabad Division was dealt with under Rule
153 of Railway Protection Force Rules, 1987 (for short, 'the
Rules') alleging that he failed to maintain absolute integrity,
devotion to duty, acted in a manner as unbecoming of a railway
servant and bringing discredit to the reputation of the Force.
The following three charges were framed:
" i) Petitioner is guilty of incident of theft of railway material
from Printing Press, Secunderabad on three occasions i.e. transporting
out 08 numbers of railways C.C.Cribs and 08 numbers of fish plates on
22.11.2009 during his shift duty from 6 am to 2 pm at Main Gate of
Printing Press Secunderabad and further 09 numbers of railway C.C.
cribs and 22 numbers of fish plates on 11.01.2010 during his shift duty
from 6 am to 2 am at Main Gate at Printing Press, Secunderabad by a
DCM vehicle passing through the main gate. On both the occasions, he
allowed the DCM vehicle to pass through the main gate without making
any entry in the incoming and the outgoing register.
ii) On 05.02.2010, he has given a false statement to S.K.
Ibrahim, Sub-Inspector of Protection Force in-charge of Printing Press
Secundrabad Post, that he has not seen any engineering material or M.
S. Cribs (C.C.) at ward No.4 or back side of the car shed in the Printing
press and no such material was present during his period of service,
further in his statement dated 31.03.2010 to Inspector, Protection Force
he stated that theft of Railway Material on 22.11.2009 and 11.01.2010
at Printing Press had happened during his duty hours.
iii) He did not intimate the theft of 8 numbers of Railway
C.C. Cribs and 8 numbers of Fish plates on 22.11.2009 to his Superior
Officers.
Petitioner submitted his explanation denying the
allegations and the alleged theft never took place during his
duty hours and that the Inspector took his subsequent
statement dated 31.03.2010 forcibly to the effect that theft had
happened on the alleged dates. However, without considering
the explanation, the 4th respondent - Assistant Security
Commissioner, disciplinary authority vide Divisional Order No.
23 of 2011, dated 15.03.2011, based on enquiry report, imposed
the punishment of reduction of existing pay by two stages for a
period of two years with recurring effects. Petitioner preferred
Appeal being Divisional Order No. 50 of 2011 before the 2nd
respondent - Senior Divisional Security Commissioner. During
the said Appeal, though petitioner submitted that his
subsequent statement dated 31.03.2010 that theft had
happened, was obtained by the Inspector of Protection Force
forcibly and denied the veracity of the content, the 2nd
respondent did not believe the same and rejected the appeal by
order dated 19.04.2011. He therefore, preferred Revision being
Force Order No. 110 of 2012 before the 1st respondent - Deputy
Chief Security Commissioner. In terms of Rule 219.3 of the
1987 Rules and in exercise of powers conferred by Schedule III
of the said Rules, the 1st respondent enhanced the penalty
imposed on petitioner to that of removal from service with
immediate effect, by order dated 25.06.2012 on the ground that
in this case, D&AR action has been initiated against Sub-
Inspector of the Outpost as well as the Assistant Materials
Manager/Printing Press which are all matters of record, as
such, petitioner's version that such an incident never took place
is futile and does not hold water. Against the said order,
petitioner is before this Court.
2. During the hearing, petitioner had taken out I.A.No.
1 of 2023 to permit him add the ground pleaded in para No.4
thereof as additional ground. It is stated therein that as per last
para of the impugned Force Order dated 25.06.2012, the
averment that the 1st respondent had also initiated disciplinary
proceedings against other employees i.e. Sub-Inspector Outpost
as well as Assistant Material Manager, Printing Press is not
true. In fact, no such proceedings have been initiated against
the said employees; they were arrayed as Accused 2 and 4
respectively and they were acquitted in criminal proceedings;
subsequently, the Sub-Inspector (S.K. Ibrahim) was promoted
as Inspector and retired and Assistant Material Manager (Mohd.
Zeeshanuddin) also retired in usual course with all benefits and
it is only against petitioner, the 1st respondent imposed
punishment by way of dismissal from service which is nothing
but showing discrimination and denial of justice. The said
Application was ordered by this Court on 15.03.2018.
3. Learned counsel for petitioner Sri M. Aravind
strenuously submits that petitioner has not committed any
misconduct while on duty either on 23.11.2009 or 11.01.2010
and diary entries do establish the said fact. He further contests
the Writ Petition on the ground that as per Rule 219.4 of the
1987 Rules, punishment cannot be enhanced by the 1st
respondent after lapse of one year as he has no jurisdiction to
do so. According to the learned counsel, the so-called
confession statement before the Inspector Sadanand cannot be
taken into consideration for imposing punishment as it is
obtained under duress and that he immediately made
representation dated 31.03.2010 to the Divisional Security
Commissioner / RPF/Secunderabad about the high-
handedness of Inspector Sadanand. Learned counsel submits
that petitioner was denied reasonable opportunity in the
enquiry as the Enquiry Officer has not supplied relevant
documents in spite of making representations dated 16.01.2011
and 24.01.2011.
4. Learned Central Government Standing Counsel
Sri Sanjeev Gillella submits that the order impugned does not
warrant any interference. He submits that petitioner
misconstrued the provision of law. It is Rule 219.3 but not
Rule 219.4 of the 1987 Rules that is applicable in the case of
petitioner.
5. In view of the rival contentions canvassed by both
the learned counsel, this Court has given a discreet
consideration to the facts borne out by the record. It is evident
that all through, petitioner has been maintaining that no theft
occurred during his duty hours on the relevant dates. It is also
his case that statement dated 31.03.2010 was obtained from
him forcibly. On the other hand, the 2nd respondent contends
that petitioner filed Writ Petition No. 21110 of 2010 challenging
the validity of the same charge sheet with an allegation that
Sri Sadananda, Inspector at RPF had obtained his statement,
was dismissed as devoid of merits. In this scenario, the
question to be considered is whether the alleged theft
occasioned during the duty hours of petitioner or not.
Petitioner, in his reply, had categorically stated that general
diary entries are one of the important registers maintained by
Security Staff at the gate wherein all the happenings and events
of the day including opening / closing of the Printing Press
premises, their timings and roaster duty staff, have to be
maintained invariably as part of their duty. In that manner,
petitioner was deputed at AB point of Printing Press,
Secunderabad managed by Senior Manager Printing
Superintendent. The fateful day i.e. 22.11.2009 happened to be
Sunday and the entire Press premises got closed by Senior
Section Engineer. According to their duty list, opening and
closing of printing press has to be done by Senior MPS
representative along with security staff; they check seals and
locks of entire wards / shops of the press and after satisfying
with the same, they make the factual position of the sealing
record in their register maintained for daily record purpose
which would be monitored regularly by Senior MPS and security
senior officers. According to petitioner, on 21.11.2010, at 22.30
hours, premises was sealed by Sri A. Lakshmaiah, Section
Engineer of Senior MPS and on 23.11.2009, seal was opened by
Sri Y. Baludu, Section Engineer of SMPS in the presence of
Security Staff B. Raghu Rama Rao, HC 229. Again with regard
to the incident dated 11.01.2010, it is stated by petitioner that
during his working hours, he never allowed DCM vehicle to pass
through the main gate without making any entry in the
incoming and outgoing register maintained by the security staff
at the gate. One Sri M. Shivaji, who was arrayed as Accused
No.1 was affecting scrap delivery on 11.01.2010 in the presence
of four departmental witnessing officials i.e. Security,
Mechanical, Accounts and Stores. According to petitioner, he
intended to say that incident did not take place during his duty
hours, but the 1st respondent - revisional authority
misconceived as if the theft never happened at all and ventured
to remove him from service. The version of petitioner is very
much evident with the finding of the II Metropolitan Magistrate
(For Railways), Secunderabad in C.C.No. 351 of 2010 initiated
against the Sub-inspector and Assistant Material Manager, who
are Accused 2 and 4 respectively and they were acquitted with a
finding that the officials are negligent after stocking the property
at Printing Press and did not verify the stock properly but
suddenly came to the conclusion that it was missing on
02.02.2010 which is unbelievable; further, the evidence of
petitioner as P.W.10 shows that he was posted on 22.11.2009
that is Sunday from 6.00 AM to 2.00 PM at main gate of the
Printing Press and denied the incoming of DCM on that day and
shifting of property; petitioner explained that on Saturday, at
about 10 PM., the said gate was closed with seal and same
remained closed throughout Sunday and opened on Monday by
7.30 AM by one Baludu, Section Engineer. If really, seal was
found to be in open condition, such Section Engineer would
have given a complaint or at least would have brought the same
to the knowledge of the authorities on that date or within short
span of time, hence as there was no complaint from the printing
press officials with regard to opening of seal, it cannot be
believed that theft had happened on Sunday. Further, it was
observed that the evidence of P.W.1 shows that the said seal
was found to be intact, as such there is no question of entering
any vehicle on that date and they are nothing to do with the
gate's sealing as it was sealed by the Section Engineer under his
sign and seal and the same would be opened by his personnel
only. Moreover, nothing was seized from the possession of A2. In
view of the evidence and categorical finding arrived at by the
criminal Court, coupled with the contentions of the learned
counsel for petitioner, it cannot, by any stretch of imagination,
be said that petitioner had committed misconduct alleged.
6. As regards the aspect of discrimination, learned
counsel for petitioner brings to the notice of this Court that
disciplinary action initiated in identical charges against the
other two delinquent employees Sri Sk. Ibrahim, Sub-
Inspector/RPF and Assistant Material Manager of Printing Press
Sri Mohd. Zeeshanuddin, were discharged and they were
allowed to retire normally, which is a clear discrimination. The
2nd respondent in the additional counter stated that the above
two individuals were issued departmental charge sheets by the
respective disciplinary authorities and annexed copies of charge
sheets issued to them, a perusal of which discloses that charges
were framed against them. The 2nd respondent neither denied
the said fact nor filed any order imposing punishment. It is clear
that they were acquitted in criminal proceedings and further, no
disciplinary action has been taken by the respondents, on the
other hand, during the disciplinary proceedings, petitioner was
transferred to Vijayawada, subjected to reduction of salary and
finally removed from service by the respondents, Hence, the
contention of petitioner that no action has been initiated against
delinquent employees; he was singled out and was imposed
punishment of removal, cannot be brushed aside.
7. During the hearing, learned counsel for petitioner
placed on record the memo to the effect that petitioner
superannuated in January 2018, hence, requests that he may
be granted back-wages along with statutory retirement benefits.
Annexed to the said memo the judgment of the Hon'ble Supreme
Court in TATA Engineering & Locomotive Co. Ltd. V.
Jitendra PD. Singh 1. The Hon'ble Apex Court in the said
judgment, observed that ' since as many as three workmen on
almost identical charges were found guilty of misconduct in
connection with the same incident, though in separate
proceedings, and one was punished with only one month's
suspension and the other was ultimately reinstated in view of
the findings recorded by the Labour Court and affirmed by the
High Court and the Supreme Court, it would be denial of justice
to the appellant if he alone is singled out for punishment by way
of dismissal from service'.
8. In the light of the law laid down supra, this Court
expresses its displeasure and holds that this is not a fit case to
impose such a major penalty of removal from service for the
misconduct alleged against petitioner. The order of the
revisional authority ie. the 1st respondent, without any
hesitation, can be said to be unjust and unwarranted in the
facts of the case on hand. Resultantly, petitioner is entitled to
the relief sought in the Writ Petition. However, since it is
represented that petitioner retired from service in January
(2001) 10 Supreme Court Cases 530
2018, this Court holds that petitioner is entitled to back-wages
and statutory retirement benefits. The respondents are
therefore, directed to settle forthwith and pay back wages and
retirement benefits to petitioner to which he is entitled to,
within a period of four weeks from the date of receipt of a copy
of this order.
9. The Writ Petition is accordingly, allowed. No costs.
10. Miscellaneous Applications, if any shall stand
closed.
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NAGESH BHEEMAPAKA, J
06th September 2024
ksld
