THE HONOURABLE MR v. The Chief Security Commissioner, Railway Protection Force, Southern Railway, Chennai.2.The Divisional Security

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 25.7.2007CORAM:THE HONOURABLE MR.JUSTICE ELIPE DHARMARAOANDTHE HONOURABLE MR.JUSTICE S.PALANIVELUWrit Appeal No.1208 of 2004V.Veeramani... Appellant/ PetitionerVs.1.The Chief Security Commissioner, Railway Protection Force, Southern Railway, Chennai.2.The Divisional Security Commissioner, Railway Protection Force, Tiruchirapalli.... Respondents/ RespondentsWrit Appeal preferred under Clause 15 of the Letters Patent,as against the order dated 9.3.2004 made in W.P.No.29111 of 2003by the learned single Judge of this Court Petition under Article226 of the Constitution of India to issue a writ ofcertiorarified Mandamus calling for the records of therespondent dated 23.9.2003 in memo No. SXT/P 227/R153/VV/6/2003and quash the same as illegal and direct the respondents to payall attended benefits from 1.9.2003 that is the date of hispetition.For appellant: Mr.AR.L.Sundaresan, Senior Counsel for M/s.AL.GanthimathiFor respondents: Mr.R.Thiagarajan, Senior Counsel for Mr.P.H.Aravind Pandian https://hcservices.ecourts.gov.in/hcservices/ JUDGMENTELIPE DHARMARAO, J.The appellant is the Inspector, Railway Protection Force.While he was working at Virudhachalam, on the written complaintdated 7.8.2003 lodged by the Old Iron Scraps and Auto partsAssociation, Neyveli, alleging that the petitioner/appellantthreatened dealers of old iron scrap shops at Neyveli,Virudhachalam, Vadalur, Kurinjipadi and Sethiathope and byputting them under the fear of implicating in false cases, hehas collected large sums of amounts from them, the DivisionalSecurity Commissioner nominated the Assistant SecurityCommissioner by name Santharam to conduct a preliminary enquiryinto the allegations, who had submitted his report on 26.8.2003to the Divisional Security Commissioner, based on which thepetitioner/appellant was placed under suspension by the orderdated 1.9.2003. Since the Assistant Security Commissioner whoheld the preliminary enquiry could not record any statementsfrom the persons connected with the complaint, since he do notknow Tamil, the Divisional Security Commissioner instructedMr.A.Chandrasekaran, Inspector, RPF on 9.9.2003 to recordstatements from the persons connected with the complaint and thesaid Inspector recorded statements from nine persons on 9.9.2003and submitted his report to the Divisional SecurityCommissioner. Thereupon, a charge memo. dated 23.9.2003 wasserved on the petitioner/appellant, appointing oneV.Raghunathan, Assistant Security Commissioner as the EnquiryOfficer. 2. The petitioner/appellant filed the Writ Petition No.29111of 2003, challenging the charge memo. dated 23.9.2003. Thoughmany grounds have been urged by the petitioner, the main groundargued both before the learned single Judge and before us isthat the charge memo. and the enquiry proceedings initiatedbased on such preliminary enquiry conducted by the AssistantSecurity Commissioner and the Inspector are fatally violatingthe provisions of Rule 248 of the Railway Protection Force Rulessince a preliminary enquiry into a public complaint can be madeagainst an Inspector of Force only by the Officer of the rank ofSecurity Commissioner and above and in this case an Inspectorand Assistant Security Commissioner had conducted thepreliminary enquiry. The petitioner would further submit thatthe preliminary enquiry Officer Mr.Santharam has made a findingin the record of statements that he has enquired some otherpersons who were not mentioned in the complaint and also deposesagainst the officers. If it is so, the enquiry officer hastravelled beyond the scope of preliminary enquiry and acted asan authority for the complainants and the mala fides can be https://hcservices.ecourts.gov.in/hcservices/ easily identified that the enquiry officer who met the personsother than the complainant has deliberately not enquired thecharged officials and there is no report or finding of thepreliminary findings of the Assistant Security Commissioneravailable and only the statements recorded behind the back ofthe charged officials are available.3. The respondents have submitted that the preliminaryenquiry was ordered to unearth the truth and written statementswere obtained from the complainant and with the very existenceof the prima facie evidence, the Disciplinary Authority came tothe conclusion that disciplinary action was warranted againstthe petitioner. As a general rule in the Code of Conduct andDiscipline that the preliminary enquiry has nothing to do afterthe issue of the charge sheet as the record of the preliminaryenquiry normally is not a part of the record of the regulardepartmental enquiry. Though not obligatory, there is no bar inciting the evidences collected during the preliminary enquiryincluding the officer who conducted the same being cited andrelied on during regular enquiry, if they are relevant for thepurpose of the Departmental Enquiry. The regular enquiry in thedisciplinary proceedings commences after the issue of chargememo. where the delinquent will be given all the opportunity todefend himself and the requirements of Rule 248 of the RPF Rulesare only directive. It is also submitted that in cases wheresearches are said to be illegal, the materials collected duringsuch illegal searches are held admissible in evidence and hencethe preliminary enquiry held by the Assistant SecurityCommissioner and the recording of statements by the Inspector ofthe persons connected with the complaint dated 7.8.2003 will notvitiate the regular enquiry in the disciplinary proceedings. Itis also relevant to note that during the course of thedisciplinary proceedings, it is open to the administration toignore the materials collected during the preliminary enquiry.4. The learned single Judge, while recording that theofficers who conducted preliminary enquiry are not in the upperrank than that of the petitioner/appellant, has held that thepreliminary inquiry is not judicial in character, but only afact finding inquiry and it is desirable that competent personsare deputed for holding preliminary enquiry, has dismissed thewrit petition, giving cause of action for the writ petitioner toprefer this writ appeal.5. We have heard Mr.AR.L.Sundaresan, learned Senior Counselfor the appellant and Mr.R.Thiagarajan, learned senior counselfor the respondents.6. Since the entire dispute is regarding the authenticity of https://hcservices.ecourts.gov.in/hcservices/ the preliminary enquiry conducted by two officers, without goinginto other aspects of the case, we deem it appropriate to dealwith only this aspect of the case. It is an admitted fact thatthe service conditions of the petitioner are governed by theRailway Protection Force Rules, 1987. Therefore, we deem itappropriate to extract the relevant rules, for betterappreciation of the facts and circumstances of the case.7. Rule 153.2.1 of the Railway Protection Force Rules, 1987reads as follows:"Whenever the disciplinary authority is of the opinionthat there are grounds for inquiring into the truth ofany imputation of misconduct or misbehaviour againstan enrolled member of the Force, it may itself inquireinto or appoint an Inquiry Officer higher in rank tothe enrolled member charged but not below the rank ofInspector, or institute a Court of Inquiry into thetruth thereof." (emphasis supplied)Rule 248.1 reads as follows:"Whenever a complaint against the misconduct of anymember of the Force is received from the members ofthe public or where such complaint is received througha court wherein civil or criminal proceedings againsta member of the Force have been instituted orotherwise, and controlling officer of such member ofthe Force is of the opinion that allegations areverifiable or otherwise an inquiry is called for, hemay proceed to inquire himself into the complaintagainst a member of the Force specified in column (1)of the table below or depute any other officer asspecified in the corresponding entry in column (2) ofthe said table:TABLEMembers of the Force againstwhom complaints received(1)Inquiry Officer(2)Constables/Head ConstablesOf and above the rank ofInspectorSub-Inspector/Assistant Sub-InspectorOf and above the rank ofAssistant CommandantInspector/Assistant SecurityCommissionerOf and above the rank ofSecurity CommissionerSecurity Commissioner or aboveChief Security Commissioner orthe Additional or the DeputyChief Security Commissioner, ifso authorised by him https://hcservices.ecourts.gov.in/hcservices/

8. The petitioner is an Inspector and therefore, accordingto Rule 248.1, the proper person to conduct the inquiry is theSecurity Commissioner. But, admittedly, in this case, thepreliminary enquiry was conducted by the Assistant SecurityCommissioner and since he does not know Tamil, another Inspectorwas asked to record the statements from the concerned. Boththese officers viz. Assistant Security Commissioner, whoconducted the preliminary enquiry and the Inspector, whorecorded the statements, are not the Officers 'higher in rankto the enrolled member charged viz. the petitioner/appellantherein' in terms of Rule 153.2.1. Therefore, it can, in nouncertain terms be held that the preliminary enquiry conductedby the Assistant Security Commissioner and the Inspector, whorecorded the statements, is bad in law and consequently, thecharge memo. issued to the petitioner/appellant based on suchfindings of the Assistant Security Commissioner and theInspector is void ab initio, as has been rightly pointed out bythe learned senior counsel for the petitioner. Therefore, allthe actions initiated by the respondents, including suspensionof the petitioner/appellant based on such illegal preliminaryenquiry conducted by the Assistant Security Commissioner and theInspector are bad in law and the petitioner/appellant isentitled to pay and attended benefits from the date of hissuspension till the date of its revocation. Therefore, we areunable to accept the contention of the respondents that thepreliminary enquiry has nothing to do after the issue of thecharge sheet as the record of the preliminary enquiry normallyis not a part of the record of the regular departmental enquiry,since the very basis of the charge memo. is the illegalpreliminary enquiry conducted by the Assistant SecurityCommissioner and the Inspector. 9. In BABU VERGHESE AND OTHERS vs. BAR COUNCIL OF KERALA ANDOTHERS [1999 (II) CTC 722], the Apex Court has held that 'ifmanner of doing a particular act is prescribed under anystatute, act must be done in that manner or not at all.' In thecase on hand also, when the procedure for conducting preliminaryenquiry and contemplating regular departmental proceedingsagainst the delinquent officers were contemplated by the RailwayProtection Force Rules, the respondents cannot act contrary tothe Rules and give a simple go-bye to the procedure contemplated.10. The learned senior counsel for the respondents wouldsubmit that there is no violation of any principles of naturaljustice, calling for interference of this Court and thatpreliminary enquiry is intended to make out a prima facie caseagainst the delinquent and all opportunities would be given tothe delinquent during the regular enquiry. In support of his https://hcservices.ecourts.gov.in/hcservices/ contentions, he placed reliance on the judgment of the ApexCourt in MANAGING DIRECTOR, ECIL, HYDERABAD AND OTHERS vs.B.KARUNAKAR AND OTHERS [(1993) 4 SCC 727]. But, that is a casewhere no procedure for conducting preliminary enquiry wascontemplated under the statute. Therefore, the proposition oflaw arrived at by the Apex Court in the above case cannot beapplied to the case on hand.11. The learned single Judge has placed reliance on thejudgments of the Apex Court in (1) THE STATE OF PUNJAB vs. JAGIRSINGH, BALJIT SINGH AND KARNAM SINGH (AIR 1974 SC 1589) and (2)CHAMBAKLAL CHIMANLAL SHAH vs. UNION OF INDIA (AIR 1964 SC 1854)to dismiss the writ petition filed by the petitioner/appellant.In these two cases also, there was no procedure contemplatedunder statutes to conduct preliminary enquiry. Therefore, thepropositions laid down by the Apex Court in the said judgmentshave no application to the facts of the present case, since ashas already been adverted to supra, the entire procedure forconducting preliminary enquiry and the regular enquiry has beencontemplated under the Railway Protection Force Rules.Therefore, the order of the learned single Judge is setaside and this Writ Appeal is allowed. Writ Petition No.29111of 2003 filed by the petitioner/appellant stands allowed, asprayed for. However, it is made clear that quashing theimpugned charge memo. will not amount to relieving thepetitioner/appellant from the allegations levelled against himand it is open to the respondents, if they so desire, toinitiate disciplinary proceedings against thepetitioner/appellant as per the rules and regulations accordingto law. We keep open all other points raised by both theparties, to be raised by them during the enquiry, if instituted.No costs.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.Rao https://hcservices.ecourts.gov.in/hcservices/ To1.The Chief Security Commissioner, Railway Protection Force, Southern Railway, Chennai.2.The Divisional Security Commissioner, Railway Protection Force, Tiruchirapalli.1 cc to Mr.P. H. Arvindh Pandian, Advocate, sr. 462761 cc to mr.A.L. Gandhimthi, Advocate, sr. 46158 Judgment in W.A.No.1208 of 2004SSV (CO)kk 7/8