J. Selvaraj (Petitioner) v. Union Of India ().

K. Bhaskaran, J.:— The petitioner who was a member of the Railway Protection Force was removed from service by Ext. P. 2 penalty advice dated 19-2-1977 passed by the Assistant Security Officer, Madurai, for having found the petitioner guilty for the charge of unfitness for duty in that while on oft duty at K.C.V.E on 27-5-1976 after having performed 8 to 16 hrs. duty he had committed theft by extracting six fancy glass tumblers and one fancy glass ja??? from a carrot cue to invoice No. 39 of 2-2-1976 ex. F.Z.D to T.V.C kept inside the Goods shed at Kochiveli for effecting delivery. Though the petitioner submitted an appeal against Ext. P. 2 that was rejected by Ext. P. 3 memorandum dated 7-5-1977 issued by the Security Officer, Southern Range, Thiruchirappalli. A revision filed by the petitioner against Exts. P. 2 and P. 3 orders-was dismissed by the Deputy Chief Security Officer by his order dated 29-12-1977, a true copy of which is Ext. P. 4.

2. Sri N. Ramanathan Pillai, the counsel for the petitioner, submitted that the disciplinary authority as well as the appellate and rovisional authorities had committed grave mistake in not noticing that the charge levelled against the petitioner being one of theft he sought to have been proceeded against in accordance with the provisions contained in rule 3 of Chapter XX of the Railway Protection Force Regulations, 1966.

3. The said rule lays down as follows:—

“3. Registration of offences (cases of thefts). If at any stage of enquiry by the R.P.F the commission of a cognizable offence, i.e, theft/pilferage is established, the case shall be registered in the R.P.F Crime Register maintained at the R.P.F post in accordance with the classifications prescribed in the subsequent paragraphs. It shall also be ensured that the local Police register the offence, and their crime number should be ascertained and recorded.”

4. He also submitted that if the petitioner was prosecuted in a criminal court, the chances for a proper and effective defence would have been greater.

5. I do not think that there is any legal basis for this argument advanced on behalf of the petitioner. The provisions contained in Chapter XX are the provisions for dealing with crime generally, and I am afraid it has little or no reference to disciplinary proceedings against the employees of the Railways. Assuming that it relates to the employees also, it cannot be said that the provisions for tailed in Chapter XV ana Chapter XX are exhaustive of each other. It may even be that the Railway authorities may have the option either to proceed against the culprit in a criminal court or, in the case of a culprit who happens to be an employee, to proceed according to law after holding an enquiry into the charges leveled against him. In this case the charge leveled against the petitioner would fall squarely within rule 3(i) of Chapter XV of the Rules which insists that every railway servant shall at all times maintain absolute integrity.

6. Regarding the conduct of the enquiry the counsel for the petitioner submitted that three of the witnesses whom the petitioner wanted to examine were not examined at the enquiry as it was stated that they had expressed their unwillingness to depose in favour of the petitioner. No enquiry officer can compel the presence of unwilling witnesses or to make them speak in favour of the delinquent employee. I do not therefore think that that is a proper ground for interference by this Court even in regard to the conduct of the enquiry. The counsel for the petitioner submitted that the appellate authority did not follow the procedure prescribed by the rules inasmuch ns he had not stated whether the punishment awarded was severe or not. The appellate authority seems to have considered all aspects of the matter and confirmed Ext. P. 2 order. In Ext. P. 4 order positively there is an observation that no leniency is called for.

7. The counsel for the petitioner submitted that considering the smallness of the cost of the articles alleged to have been stolen by the petitioner, a man who is just in his thirties, should not have been subjected to too severe a punishment like removal from service As far as the punishment to be inflicted in a proved case, by and large it is the responsibility of the disciplinary authority. However, I make it clear that if the petitioner makes a representation regarding the severe nature of the punishment of removal from service inflicted on him, nothing said in this judgment will preclude any of the concerned authorities from considering the case sympathetically if they are inclined to do so, taking into account ail the relevant facts of the case. The officers who passed Ext. P. 2 to P. 4 orders are not seen made parties to the proceedings. However, I think that may not stand in the way of the petitioner's representation, if any made, being considered by the concerned authorities. The writ petition is disposed of with the above observations. There will be no order as to costs.

8. Carbon copy of this judgment may be granted to the counsel for the petitioner and the counsel for the respondent on usual terms if applied for in the behalf.

9. Petition dismissed.