M. Kathavarayan v. The Union of India, rep. by its Secretary & Others
2009-03-26
R.BANUMATHI
body2009
DigiLaw.ai
Judgment Petitioner seeks Writ of Certiorarified Mandamus to quash the order of the 4th Respondent dated 17. 1983 and direct the 2nd Respondent to reinstate the Petitioner with back wages along with other benefits to the post as Rakshak in Southern Railways. 2. Facts in nutshell are as follows:- (i) Petitioner was appointed as Constable (Fire Branch), Railway Protection Force on 06.02.1973. He had his initial training at RPF Training Centre, Kimber Garden, Trichy and after completion of training, he was posted as Constable (Fire Branch) at Integrated Coach Factory [ICF], Perambur on 010. 1973. During the period, Petitioner was punished once for unauthorised absence and thereafter, Petitioner was posted as Constable (Fire Branch) at Engineering Workshop at Arakkonam on 25.07.1978. Petitioner absented himself for duty from 10. 1980 to 30.10.1982 and was issued with a major penalty charge sheet together carrying therein the earlier punishments. (ii) Petitioner did not prefer any appeal to the Security Officer, Madras who was the Appellate Authority. After lapse of 4 years i.e. in 1987, Petitioner preferred representation to the 3rd Respondent – Southern Railways who in turn confirmed the penalty awarded by the order dated 03.02.1988. (iii) Thereafter, Petitioner filed W.P.No.21366/2004 and as per the direction of the High Court, opportunity of a personal representation was afforded to the Petitioner and 2nd Respondent by order dated 06.01.2006 dismissed Petitioners representation. Challenging the order of removal from service [dated 17. 1983], Petitioner has preferred this Writ Petition. 3. Fourth Respondent has filed counter stating that Petitioner has preferred his representation to the 3rd Respondent after a lapse of four years and 3rd Respondent who in turn rejected the representation of the Petitioner on 03.02.1988. It was further averred that only after affording reasonable opportunity, impugned order has been passed. 4. Contention of the Petitioner is two fold :- (i) Chief Security Commissioner of RPF is the Appointing Authority and 4th Respondent – Asst. Security Officer is not the competent Authority to terminate the Petitioner; (ii) Averments that Petitioner was imposed punishment more than once for his unauthorised absence is wrong and no opportunity was afforded to the Petitioner. 5. While Advocates were on boycott, Petitioner himself appeared in person and made his submissions. 6. Later after Advocates resumed work, I have also hear Mr.K.P.Chandrasekaran, learned counsel for the Petitioner. 7.
5. While Advocates were on boycott, Petitioner himself appeared in person and made his submissions. 6. Later after Advocates resumed work, I have also hear Mr.K.P.Chandrasekaran, learned counsel for the Petitioner. 7. Learned counsel for the Petitioner submitted that under Art. 311(1) of Constitution of India, only the Appointing Authority has power to remove any Government servant from the service and 3rd Respondent – Chief Security Commissioner is the Appointing Authority and the action of 4th Respondent passing order of removal from service is violative of Art.311 (1) of Constitution of India and principles of natural justice. 8. The above contention does not merit acceptance. It is well settled that it is not necessary that Charges should be framed by the Authority competent to award proposed penalty or that enquiry should be conducted only by such Authority. 9. Observing that power of appointment does not rest merely with Chief Security Commissioner of RPF and that Rule 20 of Railway Protection Force gives power of appointment to Asst. Security Officer also and Rakshak appointed by Asst. Security Officer can be dismissed by him. In AIR 1993 SC 205 [Union of India and others v. Rajendra Singh and another], Supreme Court has held as under:- "12. A bare reading of the Act, particularly Section 6, will show that the Act contemplates that the "Appointment of members of the Force shall rest with the Chief Security Officer" who is supposed to exercise powers in accordance with the Rules made under the Act. The proviso the Rule 6 contemplates other authorities being authorised for making the appointment as may be delegated to such officers by the Chief Security Officer. Therefore, there can be no doubt that the Act contemplates appointment of members of the Force not only by the Chief Security Officer but also by others. The question, therefore, arises is, what is the meaning of the expression "appointment of members of Force shall rest with the Chief Security Officer"? The expression "rest" in this Section coveys the idea of overall control of appointment resting with the Chief Security Officer subject to the provisions of the Rules. As we have stated earlier Section 6 of the Act contemplates appointment of the members of the Force by such authorities as may be authorised.
The expression "rest" in this Section coveys the idea of overall control of appointment resting with the Chief Security Officer subject to the provisions of the Rules. As we have stated earlier Section 6 of the Act contemplates appointment of the members of the Force by such authorities as may be authorised. The proviso to Section 6 contemplates specifically written order of delegation by the Chief Security Officer but this does not derogate from the power of the rule making authority to confer the said power. The Section and the proviso in our opinion do not rest the power of appointment merely with the Chief Security Officer. What is contemplated is that the Chief Security Officer will have overall control in the matter of appointment and that control be exercised in accordance with the Rules. If the Rules provide for appointment by other superior officers, it cannot be said to be in derogation of the Act or the purposes of the Act. 13. A bare reading of Section 9 of the Act also shows that it is only subject to the provisions of Art.311 of the Constitution and to such rules as the Central Government may make under the Act, that any superior officer could exercise the powers mentioned in Section 9 (1) (i) of the Act. If only the Chief Security Officer, who is one of the superior officers alone have the powers of dismissal on the hypothesis that he alone was competent to appoint members of the Force then Section 9 of the Act would not have been worded in the manner it has been so enacted. 10. Observing that initiation of departmental proceedings and conducting enquiry can be by the Authority other than the Authority competent to impose proposed penalty in AIR 1996 SC 1318 [Inspector General of Police and another v. Thavasiappan], Supreme Court held thus:- "8. The learned counsel also drew our attention to P.V.Srinivasa Sastry v. Comptroller and Auditor General, (1993) 1 SCC 419 : (1993 AIR SCW 550), wherein this Court in the context of Article 311 (1) has held that in absence of a rule any superior authority who can be held to be the controlling authority who can initiate a departmental proceeding and that initiation of a departmental proceeding per se does not visit the officer concerned with any evil consequences.
Transport Commissioner, Madras v. A.Radha Krishna Moorthy, (1995) 1 SCC 332 : (1995 AIR SCW 1555) was next relied upon. Therein also this Court has held that initiation of disciplinary enquiry can be by an officer subordinate to the appointing authority. These decisions fully support the contention of the learned counsel for the appellants that initiation of a departmental proceeding and conducting an enquiry can be by an authority other than the authority competent to impose the proposed penalty. 9. ..... Generally speaking, it is not necessary that charges should be framed by the authority competent to award the proposed penalty or that the enquiry should be conducted by such authority. ........" 11. The above decisions fully support the contention of the learned counsel for the Respondents. The impugned order cannot be assailed on the ground that initiation of departmental proceedings and conducting of enquiry by Asst. Security Officer and order of removal from service passed by the Asst. Security Officer. 12. Petitioner further submitted that no notice was served upon him and that there was violation of principles of natural justice. It is seen from the counter-affidavit that notice was served upon the Petitioners sister on 26. 1983 and reasonable opportunities were granted to the Petitioner. In fact, Petitioner who appeared in person had admitted that notice was served upon his sister; but Petitioner hastened to add that his sister had not informed about the notice. When notice was being served upon the Petitioner, Petitioner cannot complain of violation of principles of natural justice. 13. Mr. P.H.Arvindh Pandian, learned counsel for the Respondents submitted that having regard to the previous conduct of the Petitioner, 4th Respondent has rightly imposed the punishment of removal from service and Petitioner does not deserve any leniency. 14. It is pertinent to note that Petitioner has not challenged the order of removal from service in 1983. Only after a lapse of 4 years i.e. in 1987 Petitioner preferred representation to the Chief Security Commissioner, RPF who in turn confirmed the penalty awarded by the order dated 02. 1988. Thereafter, nearly after 16 years, Petitioner filed W.P.No.21366/2004. No plausible explanation is forthcoming for the inordinate delay in assailing the order of removal from service. 15. Insofar as quantum of punishment is concerned, during his tenure at ICF from 010. 1973 to 24.07.1978, Petitioner absented himself from duty for 7 days from 05. 1977 to 05.
1988. Thereafter, nearly after 16 years, Petitioner filed W.P.No.21366/2004. No plausible explanation is forthcoming for the inordinate delay in assailing the order of removal from service. 15. Insofar as quantum of punishment is concerned, during his tenure at ICF from 010. 1973 to 24.07.1978, Petitioner absented himself from duty for 7 days from 05. 1977 to 05. 1977 for which he was punished and awarded Censure. During his tenure at Arakkonam, Petitioner absented himself number of times, at least 5 times for each of which punishment of withholding of increment was imposed. For his absence from 01. 1981 to 21. 1981, punishment of Censure was imposed. Again for his absence from 09. 1981 to 011. 1981, punishment of reduction of pay to minimum period of two years was imposed. Again for his absence from 02. 1982 to 03. 1982, his increment was withheld for six months. Petitioner was also punished for subletting his Railway Quarters to an outsider. 16. Though, Petitioner has denied his prior absence and awarding of punishments such denial is devoid of substance. In the Typed set of papers, copy of Service Register of the Petitioner was produced. All the entries imposing punishments are reflected in the Service Register. Pointing out eleven punishments awarded for unauthorised absence, the order of removal from service was passed on 17. 1983. The said order reads as under:- "Removed from service with effect from 17. 83 A/N for the following charges. "while functioning as a RK at Fire Station EWS/AJJ Post he absented himself unauthorisedly for duty from 10. 82 to 30.10.82 on his own accord. He has failed to follow the medical rules and absented unauthorisedly". "He has been awarded 11 punishments for unauthorised absence during his service of 9 years from 10. 73 but he has failed to rectify himself. The period of absence from 10. 82 to 30.10.82 is treated as LWP." Petitioner being a chronic absentee does not deserve any leniency from this Court, more so when order of removal is challenged nearly after two decades. 17. In the result, the Writ Petition is dismissed. No costs.