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2023 DIGILAW 1524 (AP)

Railway Protection Force v. B Chennaiah

2023-12-07

G.NARENDAR, NYAPATHY VIJAY

body2023
JUDGMENT N.VJAY, J. - The present intra-Court Appeal is filed against the Order dtd. 4/1/2022 in W.P.No.30147 of 2012 in setting aside the order of removal of the writ petitioner and further directing the appellant state to impose punishment other than dismissal/removal/termination/compulsory retirement. 2. The Writ Petition was filed questioning the punishment of removal from service as confirmed in the departmental appeal. 3. The facts leading to the present Writ Appeal are as under:- The respondent/writ petitioner was appointed as a Constable in the Office of the 2nd respondent-Divisional Security Commissioner (SCR), Railway Protection Force on 9/8/1989. He was assigned the job of train escort duties. While so, on 24/5/2011 when the writ petitioner was on escort duty in Godavari Express, as the train was crowded with unreserved and unauthorized passengers, the writ petitioner was asking the unauthorized passengers to vacate themselves from the reserved Coach, for which T.T.E of the Coach took objection. At that juncture, some untoward incident is alleged to have happened between the writ petitioner and T.T.E. Thereafter, T.T.E lodged a complaint against the writ petitioner at GRP, Vijayawada. In that regard, the writ petitioner was issued draft Charge for his failure to inform the administration about the registration of criminal case against him and for the alleged misbehavior with on duty T.T.E on 24/5/2011 vide Proceedings dtd. 28/6/2011. 4. The Charge is extracted hereunder for ready reference:- "Charge: Sri B.Chennaiah, Con/OGL now working at AK Post/NED Division is hereby charged for failure to inform the administration about the registration of a criminal case against him and for his discreditable conduct in that: 1. A criminal case in crime No.61/2011 u/s 332 IPC was registered against him by the GRP/Tuni, on 25/5/11. He has failed to inform the administration of the same, thereby violating rule No.247 of the RPF Rules, 1987. 2. On 24/5/11, while on Train escort duty on Train No.12727 Godavari Express, he misbehaved and assaulted the on duty TTE Sri R.Vijayakrishna between ANV-SLO." 5. The writ petitioner gave explanation to the same, thereafter enquiry was conducted and enquiry report was also submitted. In the enquiry report, the passengers and other related persons were examined. Apart from the self serving testimony of the alleged victim i.e P.W.3 TTE Sri R.Vijayakrishna and one witness PW.4, nobody supported the case of against the writ petitioner. The writ petitioner gave explanation to the same, thereafter enquiry was conducted and enquiry report was also submitted. In the enquiry report, the passengers and other related persons were examined. Apart from the self serving testimony of the alleged victim i.e P.W.3 TTE Sri R.Vijayakrishna and one witness PW.4, nobody supported the case of against the writ petitioner. Curiously in the enquiry report, PW.1 Smt K.Anusha was declared hostile by the enquiry officer. On the basis of self serving testimony of the PW.3 and PW.4, the enquiry officer opined that the charges against the writ petitioner were held proved. There was specific finding with regard to Charge No.1 nor any point was posed for consideration. 6. Thereafter, the disciplinary authority-2nd respondent vide Order No. N/XP.227/153/BC/2011-02, dtd. 17/5/2012 passed "Order of Removal from Service". Thereafter, the petitioner filed an Appeal and the same was dismissed on 6/7/2012 vide Order No.X/P.227/153/Rev.Petition/MRP/2012 rejecting the appeal. 7. Aggrieved thereby, the writ petitioner filed W.P.No.31047 of 2012 before this Court. The Learned Single Judge after hearing the respective parties and after examining the entire record was of the opinion that the writ petitioner having worked for more than 24 years, without there being any remark or complaint/blemish against him, except the present incident, was of the opinion that the punishment imposed on the writ petitioner is not proportionate with the Charge. The Learned Single Judge remitted the matter back vide Orders dtd. 4/1/2022 for imposing an appropriate punishment proportionate with the proved misconduct except the punishment of dismissal /removal /termination /compulsory retirement and this exercise is to be completed within two (2) months. 8. In the present Appeal, the Learned Counsel for the Appellants contended that the punishment imposed on the writ petitioner was proportionate to the Charge framed against him and being a member of the Police Force he should be more disciplined and such conduct is unbecoming of a member of a disciplined Force and therefore the punishment of termination from service is proportionate. 9. 9. The Learned Counsel for the writ petitioner reiterated the submissions made before the Learned Single Judge that the writ petitioner had a clean record and an isolated incident in a career spanning for 24 years could not be undone by a solitary incident based, more on self serving statement of the alleged victim PW.3.It was also pointed out in the Grounds of Appeal that there is no dispute with regard to the observation of the Learned Single Judge that the writ petitioner had an unblemished record in his career for more than 24 years. 10. This Court after hearing the respective Counsels is of the opinion that the Learned Single Judge is justified in his reasoning that an solitary incident in the long career of the writ petitioner could not be a sole cause for issuance of orders of removal more so on self serving statement of the alleged victim PW.3. It is also stated that the criminal case in C.C.No.347 of 2011 before the Learned II Metropolitan Magistrate for Railways, Vijayawada on the very same charge of assault of TTE had ended in acquittal and the writ petitioner was found not guilty vide judgment dtd. 7/5/2015. The acquittal in the criminal case on the very same incident and inspite of the testimony of TTE, who was examined as PW.1 in the criminal case cannot be lost sight of by this court. 11. One of the facts narrated above, which was not disputed in the enquiry proceedings, is the defence of the writ petitioner that there were unauthorized passengers on that train and while the writ petitioner was doing his job to vacate the unauthorized passengers, the alleged altercation took place. This fact of unauthorized passengers on the train was conveniently given go-bye in the Departmental Proceedings and the writ petitioner was imposed with penalty. The cause of alleged assault in that context was extremely necessary to arrive at a conclusion with regard to guilt of the delinquent and this was not discussed in the enquiry report or in the impugned orders of removal. In fact the same, on the contrary, would go to prove dereliction of duty on the part of the T.T.E, who admittedly offered the eviction of the un-authorized passenger. The Respondent cannot be punished for performing his duty of evicting the un-authorized passengers. In fact the same, on the contrary, would go to prove dereliction of duty on the part of the T.T.E, who admittedly offered the eviction of the un-authorized passenger. The Respondent cannot be punished for performing his duty of evicting the un-authorized passengers. It is also pertinent to note that there is corroboration of the assault by any medical evidence in the form of any injury suffered. This leads us to doubt the very veracity of the allegation. 12. Even otherwise, the orders of termination/dismissal and removal from service are considered as capital punishments in Service Law and such extreme punishments cannot be based on an isolated incident. Removal from service is an extreme penalty and before inflicting such a punishment, the Disciplinary Authority is required to examine as to whether any lesser punishment can be inflicted considering the misconduct of an employee. If there are chances of re-formation and improvement in conduct, one chance can be given to the employee. It is to be noted that punishment of removal or dismissal will affect the entire family members of the employee as the family members will also be put in ruinous financial condition. Though not a sole criteria for deciding the question of punishment, these factors are required to be kept in mind as the entire life of not only the delinquent but his family members is likely to be disturbed. 13. This Court therefore concurs with the reasoning adopted by the Learned Single Judge that the "Order of termination from services" is shockingly disproportionate with the Charge and as such this Court does not find any merit in the Writ Appeal and the same is liable to be dismissed. 14. Accordingly, the Writ Appeal is dismissed. There shall be no order as to costs. As a sequel, pending applications, if any, shall stand closed.