Remanded

P. Jagannatham, S/o. P. Lingaiah, v. The Divisional Security Commissioner/Mg.

Telangana HC2 Jan 2012WP/13047/2003

Case brief

AI extract

What is this about?

In this service matter, the High Court examined the legality of departmental proceedings initiated against a Railway Protection Force constable suffering from mental illness. The Court held that the appellate authority failed to properly adjudicate the plea of mental incapacity and illness. Consequently, the Writ Petition was allowed, and the appeal was remanded to allow fresh consideration.

What did the court decide?

The Writ Petition is allowed; the appeal order is set aside; matter remanded to the 2nd respondent for fresh disposal of the appeal.

P. Jagannatham, S/o. P. Lingaiah, Vs The… — Pension and Retirement Benefits | Telangana HC (2012)

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THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY

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Writ Petition No.13047 of 2003

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Date:02nd January, 2012

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Between:

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P.Jagannatham S/o.P.Lingaiah

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..... Petitioner

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AND

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1. The Divisional Security Commissioner/MG., Railway Protection Force, South Central Railway, Hyderabad Division, DRM Compound, Secunderabad & Anr.

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.....Respondents

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THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY

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Writ Petition No.13047 of 2003

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ORDER:

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This Writ Petition has been filed by P.Jagannatham seeking mandamus declaring the action of the Divisional Security Commissioner/RPF, Hyderabad Division-1^st respondent in imposing punishment of reduction of pay to the minimum pay scale of Rs.3050Rs.4590 (NS) for a period of 5 years with cumulative effect as confirmed by the Chief Security Commissioner/SC, RPF, Secunderabad-2^nd respondent, as illegal, arbitrary and violative of Articles 14 and 16 of the Constitution of India.

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2. The petitioner was appointed as Railway Protection Force Constable in executive branch on 01.05.1981. While working as Constable at Kachiguda, he fell sick on 02.12.1999 and took treatment in the Railway Hospital, Lallaguda. Thereafter, he was

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referred to the Institute of Mental Health, Yerragadda, Hyderabad. While he was taking treatment for mental sickness, he was charge sheeted for producing a forged sick memo. The department nominated Sri P.Zachraiah, Inspector, as an enquiry officer. He conducted enquiry and submitted report stating that the petitioner produced a forged sick memo. The Divisional Security Commissioner, RPF, SCR, Hyderabad-1^st respondent perused the enquiry report and accepted the findings recorded by the enquiry officer and imposed punishment of reduction of pay to the minimum of his scale i.e. Rs.3050-Rs.4590/NS for a period of 5 years with cumulative effect by the Divisional Force Order No.01/2001, dated 17.01.2001. The petitioner preferred an appeal to the Chief Security Commissioner-2^nd respondent. The Appellate Authority dismissed the appeal by Force Order No.43 of 2002, dated 13.03.2002. Hence, this Writ Petition assailing the order of the Divisional Security Commissioner as confirmed by the Chief Security Commissioner. It is averred in the affidavit filed in support of the petition that the enquiry against the petitioner was conducted while he was suffering from mental disorder and in violation of the Railway Protection Rules. For better appreciation, I may refer, paras. 3 to 5 of the affidavit filed in support of the writ petition, and they are thus:

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“The petitioner further submit that the Railway Doctor has issued prescription certificate dated 01.03.2002 that the petitioner is unfit to perform the duties of RPF Constable while so, the first respondent has issued Charge Sheet in Proceedings No.DAR/153/03/Hyb/2000, dated 28.01.2000 alleging that the petitioner has taken treatment in the Railway Hospital by producing forged sick memo with signature and rubber stamp of SIPFFS/MFT and appointed one Sri P.Zachraiah, Inspector as Enquiry Officer.

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4. The petitioner further submit that the petitioner was taking treatment for mental sickness and the petitioner was in not a position to understand the things, as such wife of the petitioner Smt.P.Chitharamma has sent representation to the enquiry officer on 25.6.2000 seeking postponement of the enquiry, but the Enquiry Officer has conducted exparte enquiry even though the petitioner was suffering from mental disorder and submitted the enquiry report dated 11.12.2000 stating the charge is proved.

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5. The petitioner further submit that since, he was suffering from mental disorder the enquiry report which was sent to his residence his wife has not

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taken the report and the enquiry findings was returned to the first respondent office. The first respondent without considering the facts of the sickness of the petitioner and request made by the petitioner’s wife for postponement of the enquiry and the findings which were made exparte without giving any opportunity to the petitioner has passed order dt.17.1.2002 vide Proceedings No.DAR/153/HYD/2000 (Divl. Order No.01/2000), imposing the punishment of reduction of the pay to minimum of pay scale i.e. Rs.3050-Rs.4590 for a period of 5 years with cumulative effect. The copy of the same is herewith filed as Material Paper P-1.”

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3. Rule Nisi came to be issued on 04.07.2003.

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4. The respondents entered appearance and filed counter affidavit. The counter-affidavit in brief is: The petitioner produced a forged sick memo, dated 03.12.1999, to the Railway Hospital authorities at the time of reporting sick. For producing the forged sick memo, he came to be placed under suspension. But the petitioner refused to receive the suspension order as well as the charge memo. Despite providing many opportunities, the petitioner did not choose to participate in the departmental enquiry. Therefore, the enquiry officer conducted departmental enquiry ex parte and submitted his findings to the disciplinary authority. The disciplinary authority sent the copy of the enquiry report to the petitioner, but the petitioner refused to receive the same. Thereupon, a copy of the enquiry report came to be pasted on the wall of the residence of the petitioner. The disciplinary authority accepted the enquiry report and imposed punishment of reduction of pay to the minimum of scale ie. Rs.3050-Rs.4590(NS) for a period of 5 years with cumulative effect. The wife of the petitioner viz., Smt.P.Chitharamma submitted an appeal to the Chief Security Commissioner/SE, directly. Subsequently, the petitioner filed an appeal, dated 06.02.2002, and the said appeal came to be dismissed confirming the punishment awarded by the disciplinary authority. However, the suspension period was treated as duty as the departmental proceedings ended with minor penalty. The petitioner took treatment as inpatient only from 20.01.2000 to 23.02.2000 at

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Government Institute of Mental Health, Yerragadda, Hyderabad. During the enquiry, the wife of the petitioner submitted a representation, dated 25.06.2000 and sought for an adjournment by one month and accordingly, the departmental enquiry came to be postponed to 26.07.2000. Despite granting time as sought for by the wife of the petitioner, the petitioner failed to attend the departmental enquiry and thereby, the departmental proceedings came to be conducted ex parte.

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5. Heard Sri G.Sanyasi Rao, learned counsel appearing for the petitioner and Sri A.Krishnam Raju, Standing Counsel for SCR appearing for the respondents.

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6. Learned counsel appearing for the petitioner submits that the departmental enquiry conducted against the petitioner cannot be sustained, since the enquiry was conducted while the petitioner was suffering from mental disability. The departmental proceedings were conducted in violation of principles of natural justice, in which case, the Divisional Force Order No.1, dated 17.01.2001, issued by the 2^nd respondent and the Force Order No.43/2002, dated 13.03.2002, issued by the 1^st respondent are liable to be set aside. In a way, his contention is that the departmental proceedings were conducted by Sri P.Zacharaiaah in violation of principles of natural justice and once the enquiry report was hit by the violation of principles of natural justice, the Divisional Force Order, which came to be based on the enquiry report, was liable to be set aside. In support of his submissions, he referred Rules 154 and 272 of the Railway Protection Force Rules and also placed reliance on the decisions of

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the Supreme Court in Union of India v. I.S.Singh^[1] ; Ministry of Finance v. S.B. Ramesh^[2] ; Managing Director, ECIL, Hyd. & Ors.

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v. B.Karunakar & Ors .^[3] , and the judgment of the Madras High Court in The General Manager, Home Department & Ors. The Registrar, Central Administrative Tribunal, Chennai & Ors .^[4] .

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7. In Union of India v. I.S.Singh’s case (1 supra), the Supreme Court held that when the delinquent sought for an adjournment on medical grounds, not accompanied by medical certificate, proper course for enquiry officer would be to demand the medical certificate or direct the delinquent to be examined by a specified medical officer, but ought not to proceed with the enquiry ex parte.

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8. In The General Manager, Home Department & Ors.’s case (4 supra), the Madras High Court held that the appellate authority was bound to give reasons as to why the grounds raised in the appeal were not accepted.

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9. Learned Standing Counsel appearing for the respondents submits that the petitioner did not choose to participate in the enquiry despite keeping him informed the date and therefore, it is impermissible for the petitioner to contend that he has been deprived of the reasonable opportunity of representing his case before the enquiry officer. He would further submit that the petitioner failed to produce any material on record to show that he was taking treatment in the hospital as on the date of the enquiry and that he was mentally incapacitated to represent his case before the enquiry officer and in the absence of such material, it is to be construed that the petitioner on his own violation did not choose to participate in the departmental proceedings. He would also contend that the disciplinary authority2^nd respondent sent the enquiry report for service on the petitioner, but the petitioner refused to receive the same and the said fact is evident from the Divisional Force Order No.1 of 2000, dated

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17.01.2001. The learned counsel refers the letter, dated 08.12.2000, emanating from ASI DRC4, which finds place at page No.108 of the material papers filed by the respondents.

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10. I have gone through the material papers filed by the respondents. The wife of the petitioner submitted representation, dated 25.06.2000, before the enquiry officer requesting postponement of enquiry for a period of one month. The enquiry officer considered the request of the wife of the petitioner and postponed the enquiry. In the representation addressed to the enquiry officer, it is specifically mentioned that the petitioner has been laid up with mental illness taking treatment under an authorized medical authority. For better appreciation, I may refer the letter, dated 25.06.2000, addressed by P.Chitharamma, wife of the petitioner, to the enquiry officer, which reads as hereunder:

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“The letter under reference has been served to my husband on 24.06.2000 at our residence, intimating that the enquiry is fixed on 26.06.2000 at 10.00 hrs.

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I wish to inform you that my husband ha been laid up with mental illness and is still undergoing medical treatment by authorised medical authority. In view of these facts, my husband is not in a position to attend the enquiry on 26.06.2000. It is further requested that the same may be fixed after about a month later.”

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11. The Enquiry Officer conducted the enquiry ex parte and submitted report. The disciplinary authority accepted the report and imposed punishment of reduction of pay to the minimum of pay scale i.e., 3050-4590 (NS) for a period of Five years with cumulative effect. Initially, the wife of the petitioner filed appeal on 21-2-2001 before the appellate authority-Chief Security Commissioner, R.P.F., Secunderabad(2^nd respondent). As there was no action on the appeal petition presented by the wife of the petitioner, the petitioner filed W.P.No.7794 of 2000 questioning the very departmental proceedings during the period of his unsound mind. He also sought for payment of subsistence allowance during the suspension

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period. W.P.M.P.No.27101 of 2000 moved by the petitioner came to be disposed of by giving an interim direction to the respondents to pay subsistence allowance that is applicable to the petitioner under the rules in force. Thereafter, W.P.No.7794 of 2000 came to be dismissed as infructuous on 28-10-2010. The appeal presented by the wife of the petitioner came to be returned on the ground that the appeal has to be presented under the signature of the aggrieved party and not under the signature of a legal practitioner or defence counsel or a friend, vide letter dated 29-1-2002 of the Chief Security Commissioner/RPF/SC addressed to the petitioner. Thereafter, the petitioner presented the appeal. In the appeal presented by the wife of the petitioner as well as the appeal presented by the petitioner, a specific plea has been taken that the departmental enquiry has been conducted while the petitioner was suffering from mental disability. I may refer the specific plea taken by the petitioner in the appeal presented to the Chief Security Commissioner, which reads as hereunder:-

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“ Sir, I humbly further submit that the Divl. Security Commissioner, Hyderabd Divn. Has imposed the punishment of reduction of pay to the minimum of my scale i.e., Rs.3050-4590 (NS) for a period of 5 years with cumulative effect by the order dated 17.1.2001. Sir, as I was under mental illness even when my wife has received the punishment order as such having no other alternative my wife has submitted the appeal dated 21.2.2001 on my behalf as I was taking treatment even on the date of receipt of the punishment order in the reference first cited. Sir, after recovery from illness I have submitted reminder appeal personally but I have not received any reply order from your honour as such I was compelled to file the writ petition No.25089/2001 in the reference 3^rd cited.

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Sir, I humbly further submit that now, I have received the Letter No.X/p.227/Appeal/2001-02/P.Jagannadah, dated 29.1.2002 in the reference 4^th cited from your office directing me to submit appeal in my name. Hence, this present appeal with the following grounds:”

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12. As could be seen from the appeal presented by the wife of the petitioner as well as the appeal presented by the petitioner against the order passed by the Divisional Security Commissioner (1^st respondent) , a specific plea has been advanced that the departmental enquiry was conducted while the petitioner was under treatment for mental illness. The appellate authority did not choose to adjudicate the issue as to whether the petitioner was suffering from any mental illness pending the departmental enquiry against him. Such is the situation; I am of the view that the appellate authority has not exercised its jurisdiction properly and therefore, the matter needs to be remanded to the appellate authority for readjudication of the appeal after giving an opportunity to the petitioner as well as the department.

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13. Accordingly, the Writ Petition is allowed setting aside Proceedings No.X/p/227/Appeal/2001-02 (A), dated 13-3-2002 of the 2^nd respondent and remanding the matter back to the Chief Security Commissioner for disposal of the appeal afresh putting on notice the petitioner as well as the department. No costs.

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_____________________ B.SESHASAYANA REDDY, J

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Dt.02-01-2012 CS/RAR

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