K. Sreedharan v. Chief Security Commissioner — 1992 DIGILAW 494 (KER)

JUDGMENT G.H. Guttal, J. 1. The petitioner, a Railway Rakshak in the Southern Railway, impugns the validity of the appellate order of the Divisional Security Commissioner, Railway Protection Force, Southern Railway, confirming the order dated 11-4-1988 by the Assistant Security Commissioner, whereby the petitioner was dismissed from service. 2. The brief facts out of which the petition arises are as under. At about 9.30 p.m. on 11-4-1978 there was a quarrel between the petitioner and Gopalakrishnan since deceased, over the payment to be made to a woman by name Sathyabhama. After the quarrel the petitioner and the deceased were seen in an altercation by Krishnan, an employee of the Railway Mail Service who claims to be an eye witness to the incident. The petitioner is alleged to have stabbed Gopalakrishnan to death by causing two stabbed wounds. Soon after stabbing, the petitioner is alleged to have confessed to Chamunni, another witness, that ha had stabbed Gopalakrishnan to death. In the First Information Report launched soon after the incident the accused wag described as "unknown". On the testimony of Krishnan and Chamunni the petitioner was convicted for the offence of murder. A Division Bench of this Court heard the Appeal No. 331 of 1978 by the petitioner against his conviction for the offence of murder. The findings of this Court in appeal were: (a) Krishnan who claims to have seen the incident from a distance of 15 feet raised no alarm, but coolly returned to office. He never disclosed to anyone that he had witnessed the incident, although the police station was 75 metres away. This together with the absence of the name the accused in the F.I.R. rendered testimony unreliable. (b) The extra judicial confession made to Chamunni was unreliable as it was artificial, meticulous and Chamunni too did not go to the police station which was nearby. This Court therefore recorded its finding thus: "It has not been proved beyond reasonable doubt that the appellant is guilty of the offence for which he has been convicted". The petitioner was acquitted. However, the respondents decided to proceed against the petitioner and hold a departmental enquiry, as according to them, the petitioners conduct in murdering Gopalakrishnan was unbecoming of a Government Servant. Krishnan, the alleged eyewitness and Chamunni to whom the petitioner alleged to have made the extra judicial confession testified in the inquiry. The petitioner was acquitted. However, the respondents decided to proceed against the petitioner and hold a departmental enquiry, as according to them, the petitioners conduct in murdering Gopalakrishnan was unbecoming of a Government Servant. Krishnan, the alleged eyewitness and Chamunni to whom the petitioner alleged to have made the extra judicial confession testified in the inquiry. The Enquiry Officer accepted their testimony and found that the petitioner while working in the Railway Police Force stabbed his colleague Gopalakrishnan causing instantaneous death. However, the charge in regard to the incident of nonpayment of Rs. 25/- to Sathyabhama which was the motive for the offence was held not proved. The only finding against the petitioner therefore is that he stabbed Gopalakrishnan and caused his death. 3. Learned counsel for the petitioner made the following submissions: (1) In view of the acquittal for the offence of murder it is not permissible for the department to hold an enquiry into the same allegations. (ii) The petitioner has been denied reasonable opportunity of defending at the enquiry. (iii) There is no evidence on the record to prove the charge of murder. (iv) If the petitioner succeeds in this petition he is content to retire from service Instead of being reinstated. The first submission is without any merit. The question was considered In Spadigan vs. State of Kerala. ( (1970) 1 L. L. J. 718). It was held that the doctrine of issue estoppel is not applicable in such cases and that the Government is not precluded from holding a departmental enquiry in respect of the same charge. Again in K. Babu vs. Union of India and another (1986 KLJ. 462) the same view was taken. 4. Learned counsel for the petitioner has cited : (a) Corporation of the City of Nagpur, Civil Lines, Nagapur and another v. Ramachandra and Others ( 1981 (2) SCC 714 ). (b) Mohd, Toufic v. General Manager, A. P. S. R. T. C. and another 1989 (5) SLR 301 A.P.) (c) S. Rama Rao v. Food Corporation of India and another 1989 (5) SLR 567. (d) George Varghese v. The Food Corporation of India Madras and another (1984 (1) SLR 409.) (e) K. Rangarajan v. The State of Madras (1968 Lab. (b) Mohd, Toufic v. General Manager, A. P. S. R. T. C. and another 1989 (5) SLR 301 A.P.) (c) S. Rama Rao v. Food Corporation of India and another 1989 (5) SLR 567. (d) George Varghese v. The Food Corporation of India Madras and another (1984 (1) SLR 409.) (e) K. Rangarajan v. The State of Madras (1968 Lab. I.C. 63.) (f) A. P. Naidu v. The General Manager South Central Railway and Others (A. P.) (1983 (1) SLR 527) (g) Shri. Kundan Lal v. Delhi Administration, Delhi and Others (J976) (1) SLR 133.) (h) Pritam Singh and another v. State of Punjab ( AIR 1956 SC 415 ). (i) K. Babu v. Union Bank of India and another ( 1986 KLJ 462 ) (j) Jagmohan Lal v. State of Punjab (AIR 1967 Punjab 42), and other cases. The Judgments of this Court cited in the last paragraph are binding on me. I do not therefore consider it necessary to go into the judgments of the other High Courts cited by counsel. 5. The case of denial of reasonable opportunity to show cause and defend is based on these facts. The enquiry officer did not know Malayalam. He knew only English and Tamil. He heard the evidence of witness who spoke only Malayalam. The delinquent and the witnesses were not educated persons who could testify in English. At the initial stage of the enquiry the petitioner demanded that having regard to the fact that the enquiry officer did not know the language of the witnesses another enquiry officer be appointed to facilitate a fair enquiry. Meanwhile as early as 1981 the petitioner had nominated a Gopalakrishnan, from Trivandrum Division to help him to conduct the enquiry. The nomination of Gopalakrishnan was made in accordance with R.44 of the Railway Protection Force R.1959. Since Gopalakrishnan, was the "helper'' chosen by the petitioner, the authorities decided the petitioner's case would be adequately and fairly represented by Gopalakrishnan. In view of nomination of Gopalakrishnan the respondents rejected the petitioner's application for appointment of an enquiry officer who knew Malayalam. It is the admitted practice that the person who has been accepted as a helper should be relieved from his duties so that he can attend the enquiry to help the delinquent. The enquiry officer took no steps to secure the presence of Gopalakrishnan by writing to the authorities to relieve him. It is the admitted practice that the person who has been accepted as a helper should be relieved from his duties so that he can attend the enquiry to help the delinquent. The enquiry officer took no steps to secure the presence of Gopalakrishnan by writing to the authorities to relieve him. The help of Gopalakrishnan was therefore denied to the petitioner. About two days before the enquiry commenced the petitioner was without any helper to defend his cause. The petitioner was asked to nominate two other helpers and choose one amongst them to help him. By implication the authorities accepted that Gopalakrishnan was one of the accepted nominees. The petitioner was unable to choose two other helpers. Thus he was compelled to conduct the enquiry himself without possessing the requisite skills for doing so. 6. The facts stated above are undisputed and if accepted, they mean that the petitioner was driven to face an enquiry held by a person who did not know the language of the petitioner and the witnesses. This inevitably led to a gap in the communication, omission to grasp what the witnesses said and the resultant miscarriage justice. But now the respondents urge that Gopalakrishnan was not an employee from Palghat Division to which the petitioner belonged. On the basis of sub-r.(5) of R.44 of the Railway Protection Force Rules, they urge that a delinquent has a right to present his case with the assistance of "any other member of the Force of the Zonal Railways serving in the same division in which the member so charged is working." The contention of the respondents, is untenable. They accepted the nomination of Gopalakrishnan though they knew that Gopalakrishnan was in Trivandrum Division, They never told the petitioner that in view of the rules Gopalakrishnan was not acceptable. By their conduct set out below they accepted the nomination of Gopalakrishnan. (a) They told the petitioner that since Gopalakrishnan knew English and Malayalam, his help would provide a fair trial. Therefore it was not necessary to appoint an enquiry officer who knew Malayalam. (b) They suggested that the petitioner should nominate two more helpers implying thereby that Gopalakrishnan's nomination was valid. The did not say that two more persons should be named because Gopalakrishnan's nomination was contrary to the rules. Sub-r.(5) of R.44 is not mandatory. It is an enabling rule, based on convenience. (b) They suggested that the petitioner should nominate two more helpers implying thereby that Gopalakrishnan's nomination was valid. The did not say that two more persons should be named because Gopalakrishnan's nomination was contrary to the rules. Sub-r.(5) of R.44 is not mandatory. It is an enabling rule, based on convenience. The nomination of a member of the staff from another division is not invalid though it may be inconvenient. 7. The Petitioner has pleaded a definite practice. It is for the department and the enquiry officer to have the helper relieved from duties for the purpose of the enquiry. In the affidavit in reply the respondents have not disputed this practice; but have merely pointed out the difficulties in securing the presence of Gopalakrishnan. Therefore from the pleadings it is clear that it is the department and the enquiry officer who have the obligation to secure the presence of the helper. This obligation has admittedly not been fulfilled. The judgment of the Supreme Court in C. L. Subramaniam v. The Collector of Customs, Cochin (A.I.R. 1972 S.C. 2178) is instructive. The delinquent requested that he be permitted to engage counsel. The request was rejected. He then prayed that ho should have the assistance of Abraham Kurian. Clerk, Cochin Head Post Office. He requested the disciplinary authority to move the superiors of Abraham Kurian to secure fete presence. The disciplinary authority did write to the Supdt. of Post Offices requesting him to permit Abraham Kurian to assist the delinquent. However, the communication was not received by the Supdt. of Post Offices in time and Abraham Kurian could not remain present at the enquiry. On thews facts, even where the enquiry officer had taken steps to secure the presence of the helper, it was held that the delinquent was denied the opportunity of the assistance in accordance with the rules. The principle that emerges is that the employer and the enquiry officer carry the obligation to ensure the assistance of a helper to the delinquent The right to be represented by person of one's choice is a basic element of reasonable opportunity of defence. A Government servant accused of misconduct cannot represent his case in the best manner without the assistance of a person who knows at least the rudiments of the procedures of such enquires. A Government servant accused of misconduct cannot represent his case in the best manner without the assistance of a person who knows at least the rudiments of the procedures of such enquires. The right to be represented by a person of his choice cannot therefore be denied to a delinquent. This is important because an adverse finding by the enquiry officer deprives the delinquent of his bread and butter and may throw his family into a life of utter poverty. 8. In this case no steps were taken to secure the assistance of Gopalakrishnan whose nomination was accepted by the respondents. The rule requiring that the helper be from the same division is enabling and recommendatory. It is not mandatory. The nomination of Gopalakrishnan was valid. There has been a clear denial to thy petitioner of reasonable opportunity to show cause and defend. The inquiry is therefore vitiated. 9. The third submission is that the finding of the Enquiry Offices that "the delinquent while working at S.R. R. stabbed his colleague Gopalakrishnan which resulted in the instantaneous death", is not based on evidence. This is a petition under Art.226 of the Constitution of India. It is not permissible to reevaluate or reappreciate evidence led at the enquiry and come to a different conclusion. But it is permissible to consider whether the finding on the basis of which the delinquent has been dismissed from service is based on evidence. In other words, if there is one grain of evidence to support the impugned finding the court shall not interfere. But if there is no evidence at all, this court may interfere in exercise of the jurisdiction under Art.226 of the Constitution of India. I will refer to the evidence to consider whether it supports the conclusion of the Enquiry Officer. The first witness is C. Krishnan. He has merely stated that "I heard quarrelling notice between the delinquent and another RPF man." There is no reference to possession of a weapon or assault by the weapon. This is all that Krishnan has said about the role of the delinquent. The Enquiry Officer was aware of this and unfortunately, he tried to fill in this lacuna by asking certain question. His question was: "Did you see any instruments in the hand of the delinquent at the late evening ?". The answer of Krishnan was: "I am unable to remember". The Enquiry Officer was aware of this and unfortunately, he tried to fill in this lacuna by asking certain question. His question was: "Did you see any instruments in the hand of the delinquent at the late evening ?". The answer of Krishnan was: "I am unable to remember". Therefore inspite of a hint by the Enquiry Officer that the witness ought to speak about a weapon the witness said nothing about it. The next witness is Chamunni to whom the extra judicial confession is alleged to have been made. He said this: "The delinquent rushed towards me and stated that he has stabbed R. K. Gopalakrishnan". This is the only piece of evidence which connects the delinquent with the injuries on the person Gopalakrishnan. an extra judicial confession in respect of commission of a crime needs corroboration. There is no evidence of corroboration. Again the Enquiry Officer who is expected to be neutral tried to introduce evictees of motive for the quarrel between Gopalakrishnan and the delinquent. In answer to his question Chamunni stated that he learned later on that the delinquent and Gopalakrishnan had a quarrel over an affair with a lady. Then the Enquiry Officer tried to introduce evidence about the weapon. He almost led the witness by asking this question: "Did you observe the dagger in the hand, of the delinquent when he came to yon and stated that he has stabbed Gopalakrishnan?" The witness stated (that he saw something in the hand of the delinquent but he did not identify it because of darkness. Thus the attempt by the Enquiry Officer to introduce evidence of use of a weapon also did not bring forth evidence of use of a weapon by the delinquent. 10. This "evidence" and the testimony of Krishnan is no evidence of stabbing by the delinquent. Chamunni's testimony introduces an extra judicial confession which is uncorroborated. This is not the evidence on which a finding that the petitioner stabbed Gopalakrishna and caused his death can be founded. Counsel for the petitioner is therefore right that the finding on which the impugned order was made is not based on evidence. In my opinion what the Enquiry Officer has delivered is not a finding that the petitioner stabbed Gopalakrishnan. 11. Counsel for the petitioner is therefore right that the finding on which the impugned order was made is not based on evidence. In my opinion what the Enquiry Officer has delivered is not a finding that the petitioner stabbed Gopalakrishnan. 11. Having seen the manner in which the Enquiry Officer led the enquiry, I have no doubt that the Enquiry Officer was keen about introducing the evidence against the petitioner. His leading questions suggesting the use of a dagger is a measure of the bias he had against the petitioner. Similarly is was his questioning that brought forth the evidence of motive for the alleged assault. No doubt the Enquiry Officer was within his authority in asking questions to collect facts. But in fairness, he ought to have called upon the petitioner to cross examine, after the witnesses answered in reply to the Enquiry Officer's questions. This made the enquiry far from fair and impartial. A knowledgeable helper would have sought permission to cross examine the witness with reference to the answers to the questions by the Enquiry Officer. This once again highlights the need to have an efficient helper to conduct the course of enquiry which was denied to the petitioner. 12. In view of my conclusions set out in the foregoing paragraphs I make out the following order : (1) The Appellate order passed by the respondent No. 1 on 22-9-1988 (Ext. P12) confirming the order of dismissal and the order of dismissal passed by the respondent No. 2 on 11-4-1988 are hereby quashed. (ii) The Petitioner shall be treated to have been always in the employment as Railway Rakshak notwithstanding the orders impugned in this petition and quashed by me (iii) The petitioner shall be entitled to all the benefits such as salary, allowances, seniority, promotion etc. as if the impugned orders were never made. (iv) If the petitioner has crossed the age of superannuation he shall be paid all the benefits such as provident fund, gratuity etc.