APHC010126032007

IN THE HIGH COURT OF ANDHRA

PRADESH

AT AMARAVATI

(Special Original Jurisdiction)

[3365]

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

Others

...RESPONDENT(S)

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

Others

...RESPONDENT(S)

! 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.

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Dr. VRKS, J

W.P.No.6078 of 2007

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.

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Dr. VRKS, J

W.P.No.6078 of 2007

• 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: -

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Dr. VRKS, J

W.P.No.6078 of 2007

1. State of Karnataka V. Umesh

1

2. Brij Bihari Singh V. Bihar State Financial Corporation

2

3. Deokinandan Sharma V. Union of India

3

4. Union of India V. Ram Lakhan Sharma

4

5. Ch.Appala Reddy V. Eastern Power Distribution

5

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

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)

8

Dr. VRKS, J

W.P.No.6078 of 2007

counsel for central Government cited Union of India V.

P.Gunasekaran

6

.

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

1987

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.

6

(2015) 2 SCC 610

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Dr. VRKS, J

W.P.No.6078 of 2007

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.

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Dr. VRKS, J

W.P.No.6078 of 2007

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

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Dr. VRKS, J

W.P.No.6078 of 2007

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

12

Dr. VRKS, J

W.P.No.6078 of 2007

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

13

Dr. VRKS, J

W.P.No.6078 of 2007

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

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Dr. VRKS, J

W.P.No.6078 of 2007

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

15

Dr. VRKS, J

W.P.No.6078 of 2007

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,

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Dr. VRKS, J

W.P.No.6078 of 2007

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

17

Dr. VRKS, J

W.P.No.6078 of 2007

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

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Dr. VRKS, J

W.P.No.6078 of 2007

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.

19

Dr. VRKS, J

W.P.No.6078 of 2007

_____________________________

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

20

Dr. VRKS, J

W.P.No.6078 of 2007

WRIT PETITION No.6078 of 2007

Date: 18.06.2024

Dvs