M.K. Sajeevan v. Chief Security Commissioner, Railway Protection Force, Southern Railway and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **TUESDAY, THE 16[TH] DAY OF AUGUST 2022 / 25TH SRAVANA, 1944** ## **WP(C) NO. 21960 OF 2021** ## **PETITIONER/S:** M.K.SAJEEVAN AGED 48 YEARS S/O. APPUKURUP, SAKETHAM HOUSE, MEPPAYOOR P.O, KOZHIKODE PIN 673 523 BY ADVS. M.A.ABDUL HAKHIM JOSEPH GEORGE ## **RESPONDENT/S:** 1 CHIEF SECURITY COMMISSIONER RAILWAY PROTECTION FORCE, SOUTHERN RAILWAY, 6TH FLOOR, MOORE MARKET COMPLEX, PARK TOWN, CHENNAI 600 003 2 ADDITIONAL CHIEF SECURITY COMMISSIONER RAILWAY PROTECTION FORCE, SOUTHERN RAILWAY, 6TH FLOOR, MOORE MARKET COMPLEX, PARK TOWN, CHENNAI 600 003 3 SENIOR DIVISIONAL SECUTORY COMMISSIONER RAILWAY PROTECTION FORCE, SOUTHERN RAILWAY, 6TH FLOOR, MOORE MARKET COMPLEX, PARK TOWN, CHENNAI 600 003 4 ASSISTANT SECURITY COMMISSIONERR RAILWAY PROTECTION FORCE, SOUTHERN RAILWAY, ARKONAM PIN 631 001 5 DIVISIONAL SECURITY COMMISSIONER RAILWAY PROTECTION FORCE, SOUTHERN RAILWAY, PALAKKAD, PIN 678 001 6 ASSISTANT SECURITY COMMISSIONER RAILWAY PROTECTION FORCE, SOUTHERN RAILWAY, MANGALAPURAM, PIN 575 001 BY ADV SRI.A.DINESH RAO, SC, RAILWAYS **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22.02.2022, THE COURT ON 16.08.2022 DELIVERED THE FOLLOWING:** W.P.(C) No.21960 of 2021 -2- ## **JUDGMENT** Dated this the 16[th] day of August, 2022 The petitioner had joined the Railway Protection Force as a Constable on 03.01.1996 and was promoted as Head Constable on 13.12.2019. While the petitioner was on duty at the Passenger Luggage Scanner at the Coimbatore Railway Station on 15.08.2012, by about 21.45 hours, a passenger by name E.Nagengran was found to be carrying huge quantity of finished gold jewellery in a suitcase. The petitioner detained that passenger and informed the matter to Mr.C.A Shamnath, the Inspector Protection Force (IPF). According to the petitioner, at about 22.19 hours, a person named Vigneswaran came to the spot and offered to be remain at the Station in place of Nagendran. Thereafter, by about 22.19 hours, the IPF called ## W.P.(C) No.21960 of 2021 -3- the petitioner and told him that a person will hand over a cover to the petitioner. The petitioner was asked the petitioner to accept the cover and hand it over to the IPF the next day. By about 22.25 hours, a person came to the station and handed over a cover to Vigneswaran. Immediately, Vigneswaran placed that cover in the petitioner’s shirt pocket. As instructed, petitioner handed over the cover to the IPF the next day morning (16.08.2012). Much later, on 08.12.2012, the petitioner was served with Ext.P2 charge sheet, proposing to hold an enquiry against him under Rule 153 of the Railway Protection Force Rules, 1987 (‘the Rules). The charges levelled against the petitioner were twofold; **==> picture [381 x 12] intentionally omitted <==** petitioner illegally detained E.Nagendran, a staff working with Dharma Jewellers, Coimbatore, while that person was engaged in transporting ## W.P.(C) No.21960 of 2021 -4- finished jewellery to Chennai, despite the passenger presenting the ID card, bills and transport vouchers issued by Dharma Jewellers. By his above conduct, the petitioner had violated Rule 147 of the Railway Protection Force Rules, 1987. (ii) The petitioner accepted an amount of Rs.5,000/- from the owner of Dharma Jewellers from Murali Narasinghan, the owner of Dharma Jewellers, for releasing the person by name Vigneswaran, who was illegally detained in place of E.Nagendran. Subsequently, on the intervention of Sri.Shamnath, IPF/CBE, the petitioner returned the money to Muthu Venkataraman, the President of Coimbatore Jewellery Manufacturers Association. The petitioner's action amounted to violation of Rules 146.4 (discreditable conduct) and 146.7 (iii) (improper use of position for personal gain). 2. The Enquiry Authority found the W.P.(C) No.21960 of 2021 -5- petitioner’s explanation to be unsatisfactory and ordered to conduct departmental enquiry. Accordingly, an enquiry was conducted and Ext.P4 report submitted, finding the petitioner guilty of both charges. Thereupon, the petitioner was imposed with the punishment of compulsory retirement from service with immediate effect, as per Ext.P5 order dated 30.05.2013. The petitioner preferred Ext.P7 appeal against the penalty order. Along with the appeal, petitioner produced the call details of Shamnath’s mobile phone, covering the period from 06.08.2012 to 21.08.2012. Petitioner produced the call details to prove his contention that Shamnath had called the petitioner many times on 15.08.2012 after he came to know about E.Nagendran's detention. Going by the call details, Shamnath was in constant touch with Muthuvenkitaraman. In spite of producing such clinching evidence, the appeal was ## W.P.(C) No.21960 of 2021 -6- dismissed by Ext.P8 order, upholding the findings of the Enquiry Officer and Disciplinary Authority. The petitioner took up the matter in revision under Rule 212 and the revisional authority passed Ext.P10 order finding that the appellate authority ought to have considered the additional evidence produced by the petitioner. Based on the finding, the revisional authority ordered further enquiry into the new evidence brought out by the petitioner and to take a decision based on the new enquiry report. Consequently, the appellate authority's order was quashed and the petitioner ordered to be reinstated with immediate effect, without prejudice to further action based on the departmental enquiry. 3. In compliance with the direction in Ext.P10, the petitioner was reinstated to service as per Ext.P11 memorandum dated 06.05.2014. W.P.(C) No.21960 of 2021 -7- Thereafter, the petitioner was summoned to the office of the Chief Security Commissioner, Chennai on 16.07.2014 and his statement recorded. Sri.Syamnath, who was also present, denied the allegations levelled against him. Immediately after Ext.P12 proceedings, the petitioner sent Ext.P13 letter to the Chief Security Commissioner, stating that the proceedings conducted on 16.07.2014 was patently illegal and fresh enquiry ought to be conducted. 4. Thereafter, absolutely nothing was heard about the fresh enquiry until Ext.P15 order dated 20.09.2021, directing to nominate a new enquiry officer for conducting the fresh further enquiry. Within few days, the petitioner was served with Ext.P16 order dated 22.09.2021, nominating a new enquiry officer for conducting the fresh further enquiry. This writ petition is filed challenging the further enquiry ordered as per Exts.P15 and W.P.(C) No.21960 of 2021 -8- P16. 5. Adv.M.A.Abdul Hakhim, learned Counsel for the petitioner contended that the fresh further enquiry ordered after 9 years of the incident and 8 years from the date of issuance of Ext.P10 order by the revisional authority, is _ex facie_ illegal. It is submitted that the respondent have not assigned any reason for the inordinate delay in conducting the fresh further enquiry ordered as per Ext.P10. The delay has disabled the petitioner from securing authenticated copies of the call records of Shyamnath and the petitioner, which are crucial for proving the petitioner’s innocence. In the interregnum between Ext.P10 and Ext.P15, Shyamnath has been promoted to the post of Assistant Security Commissioner, rendering it more difficult for the petitioner to crossexamine such a high ranking officer. Learned W.P.(C) No.21960 of 2021 -9- Counsel relied on the decision in _**State of MP v. Bani Singh and another [1990 Suppl.SCC 738], Vilasanadas Daniel v. District Collector [2001 (3) KLT 965], Thomas C.V v. KSEB and others [2008 (3) KLT 895], Secretary, Ministry of Defense and others v. Prabhash Chandra Mirdha [(2012) 11 SCC 565]** and_ _**Subiar P.H. v. State of Kerala and others [2021 KHC OnLine 3225]**_ rendered by this Cour _t and_ _**P.V.Mahadevan v. MD, T.N.Housing Board [(2005) 6 SCC 636],**_ to bolster the contention that initiation or continuance of disciplinary proceedings after many years of the alleged incident is, by itself, a reason for quashing the proceedings since delay entails serious prejudice to the delinquent employee. Reliance is also placed on the decision in _**Vikraman Nair K. v. State of Kerala and others [2008(4) KHC 412]**_ to contend that the writ court can review and evaluate questions of fact for the limited ## W.P.(C) No.21960 of 2021 -10- purpose of scrutinising the decision making process and to see whether the order passed is unreasonable or if the authority has abused its powers. 6. Adv.Dinesh Rao, learned Standing Counsel for the Railways, submitted that the petitioner is not put to any sort of prejudice by reason of of the fresh enquiry being conducted. It is submitted that after Ext.P10, the petitioner was transferred to Palakkad Division. As a result the further enquiry ordered in Ext.P10 was not conducted, since officials at the Palakkad Division were not aware about the pendency of the disciplinary proceedings. The direction in Ext.P10 came to their notice only while reviewing the petitioner’s service records for the purpose of granting has the second financial upgradation. It was noticed that the intervening period from the date of petitioner's compulsorily retirement ## W.P.(C) No.21960 of 2021 -11- up to the date of his reinstatement had not been regularised. Immediately, the disciplinary proceedings were reopened and fresh enquiry initiated. It is submitted that Ext.P10 is only a provisional order, directing reinstatement of the petitioner in service and ordering fresh further enquiry. It is contended that the gravity of the delinquency involved and magnitude of the misconduct should deter this Court from interfering with the disciplinary proceedings. To bolster the contention, reliance is placed on _**Chairman, LIC of India and others v. A.Masilamani**_ _**[(2013) 6 SCC 530]**_ . The decision in _**Anant R.Kulkarni v. Y.P Education Society and others**_ _**[(2013) 6 SCC 515]**_ is pressed into service to contend that Courts/Tribunals are not conferred with the power to set aside a departmental enquiry or quash the charges on the ground of delay. ## W.P.(C) No.21960 of 2021 -12- 7. From the rival contentions, the question arising for consideration is whether the delay of 8 years in conducting the fresh enquiry, is sufficient reason for quashing the disciplinary proceedings. For that, the essential facts are to be looked into. There is no dispute to the fact that the petitioner had detained E.Nagendran at Coimbatore Railway Station on 15.08.2012. The petitioner is also not disputing the fact that Vigneswaran had placed a cover in his pocket. According to the petitioner, Shyamnath had asked him to accept the cover and hand it over to the IPF the next day. The petitioner's defence is that Shyamnath had instructed the petitioner not to reveal the real facts and had assured that he will speak to the superior officers for a lenient consideration. Believing the words of the IPF, petitioner did not cross-examine Shyamnath in the enquiry. Only on being imposed with the ## W.P.(C) No.21960 of 2021 -13- punishment of compulsory retirement, the petitioner realised that he had been cheated by the IPF. Later, the petitioner obtained the call details of Shyamnath's mobile phone. The call details clearly showed that the IPF had called the petitioner four times after Nagendran was detained. The call details also revealed that the IPF was in contact with Muthuvenkitaraman, the President of Coimbatore Jewellers Association. This additional evidence was found to be of significance by the revisional authority. The petitioner's grievance is that he is disabled from obtaining authenticated copies of the call records due to the inordinate delay of 8 years after the passing of Ext.P10 order by the revisional authority. In this context, the statement given by the IPF/CBE during his chief examination in the enquiry proceedings assumes relevance. His statement is to the effect that at -14- ## W.P.(C) No.21960 of 2021 23.30 hrs on 15.08.2012, he received a call from Muthuvenkitaraman complaining that one of his colleagues had a bitter experience from the RPF staff manning the scanner at the main entrance of Coimbatore Railway Station. The IPF told Muthuvenkitaraman that he will enquire about the matter the next morning. According to the IPF, on 16.03.2012, when he reached the office at 8.30 hours, the petitioner was waiting in his office. The petitioner informed him about what had transpired on the previous night and that, one person had forcefully placed a cover in his pocket. Later, on verification, the petitioner found Rs.5,000/- inside the cover. By that time, the person who had come with the cover had left the station and it was late into the night. The petitioner also stated to the IPF that, had he known that the money was given as illegal gratification, he would have refused to accept ## W.P.(C) No.21960 of 2021 -15- the cover. It is also admitted by the IPF that the petitioner had handed over the cover containing Rs.5,000/- with a request to return it to the jewellery owner. Thereupon, the IPF contacted Muthuvenkitaran and returned the cash. It is crucial to note that absolutely no mention has been made about the four calls the IPF had made to the petitioner's mobile phone between 22.19 hours and 22.56 hours on 15.08.2012. Another aspect of importance is that the IPF has no allegation that the petitioner had demanded and received illegal gratification. On the other hand, his statement is to the effect that on realising that the cover contained illegal gratification, the petitioner came over to the IPF's office the next day morning itself and handed over the cover. Even in the statement given by Muthuvenkitaraman (Ext.P2), there is no allegation that the petitioner had demanded ## W.P.(C) No.21960 of 2021 -16- illegal gratification. The evidence of this witness is to the effect that the adamant stand of the petitioner created an impression that he was expecting money and therefore, arrangements were made for handing over Rs.5,000/- to the petitioner. Muthuvenkitaraman also stated that he had informed IPF about the incident very same night and later that night, the IPF called him back and requested him to come and collect the cash given to the petitioner the next day. 8. Although, writ courts are normally expected to evaluate the evidence for the purpose of deciding the correctness of the findings in the enquiry or the decisions of the disciplinary authority, the above evidence of crucial witnesses assumes relevance in the context of the inordinate delay in completing the disciplinary proceedings. The evidence collected by the enquring officer indicates that Shyamnath (IPF) W.P.(C) No.21960 of 2021 -17- had deliberately suppressed the fact that he had repeatedly called the petitioner on 15.08.2012 night. Being so, I find substance in the petitioner’s grievance that by reason of the delay he is disabled from producing the best evidence viz, the authenticated call records/details of the IPF and the petitioner himself. 9. The impact of delay on disciplinary proceedings has been considered in the decisions cited by the Counsel for the petitioner. In _**Vilasanadas Daniel** (supra),_ it is held that, in the absence of any allegation that the petitioner was responsible for the delay or an explanation regarding the administrative delay, the inordinate delay of 24 years in initiating disciplinary proceedings compels the Court to intervene and quash the proceedings. In _**Bani**_ _**Singh**_ , the Apex Court held that in the absence of ## W.P.(C) No.21960 of 2021 ## -18- satisfactory explanation for the delay of 12 years in initiating the disciplinary proceedings, it will be unfair to permit the departmental enquiry to be proceeded with. The delay of 10 years in initiating the departmental enquiry was held to be a ground for quashing the disciplinary proceedings in _**P .V.Mahadevan**_ . In _**Prabhash Chandra**_ _**Mirdha**_ , the Apex Court, even after holding that a charge sheet cannot generally be a subject matter of challenge, refused to interfere with the order of the Industrial Tribunal quashing the charge sheet in view of the delay of almost 21 years. In the instant case also, other than the vague reason that the petitioner was transferred to Palakkad Division and his service records were not verified till the 2[nd] financial upgradation, no satisfactory explanation is forthcoming from the respondents for the inordinate delay of 8 years in proceeding with the fresh enquiry. In W.P.(C) No.21960 of 2021 -19- this context, the submission of the Counsel for the petitioner that after reinstatement pursuant to Ext.P10, he was granted second financial upgradation as per Ext.P14 also assumes relevance. In my considered opinion, it will be too harsh on the petitioner, if a further enquiry followed by disciplinary proceedings is allowed at this distant point of time. For the aforementioned reasons, the writ petition is allowed. Exts.P1 and all further proceedings based on it, including Exts.P15 and P16 are quashed. The respondents are at liberty to take appropriate decision regarding the manner in which the period between petitioner’s compulsory retirement and reinstatement is to be reckoned. Such decision shall be taken within two months of receipt of a copy of this judgment. Sd/- **V.G.ARUN JUDGE** Scl/ W.P.(C) No.21960 of 2021 -20- ## **APPENDIX OF WP(C) 21960/2022** ## PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE RECEIPT FOR PAYMENT OF LAND TAX FOR THE YEAR 2022-2023 DATED 06.05.2022. Exhibit P2 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER TO THE 1ST RESPONDENT DATED 20.09.2021 Exhibit P3 TRUE PHOTOGRAPHS SHOWING THE EMBARRASSING SITUATION HAPPENED IN RAIN, CAUSED BY THE CONSTRUCTIONS BY THE 3RD RESPONDENT Exhibit P4 TRUE COPY OF THE MASS PETITION FILED BY THE NATIVES AND MERCHANTS OF THE LOCALITY TO THE 1ST RESPONDENT DATED NIL Exhibit P5 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER TO THE 2" RESPONDENT, DATED 17.05.2022 UNDER SEC.133 OF CR.P.C. Exhibit P6 TRUE COPY OF THE COMPLAINT FILED BY THE PETITIONER TO THE STATION HOUSE OFFICER, PERUMPADAPPU POLICE STATION, DT. 18.05.2022 Exhibit P7 TRUE COPY OF THE COMMUNICATION RECEIVED BY THE PETITIONER APPLICATION SUBMITTED UNDER R.T.I.ACT, DATED 16.06.2022