1. The present Writ Petition is filed challenging the punishment of stoppage of Annual due increment for a period of three years with cumulative effect vide Force order No.3/2006, No.X/P.227/153/Appeal/35/2005, dated 05.01.2006 passed by the 3rd respondent in rejecting the petitioner’s appeal and the Force Order No.82/2006, vide No.X/P.227/153/Appeal/35/2005, dated 05.05.2006 passed by the 2nd respondent by not interfering with the punishment given by the Disciplinary Authority, and consequently direct the respondents No.2 and 3 to pay salary instead of subsistence allowance by regularizing the suspension period for the purpose of payment of revised pension and treating the suspension period as on duty.

2. Heard Sri Y. Narapa Reddy, learned counsel for the petitioner and Smt. K. Mani Deepika, learned Standing Counsel for Central Government, appearing for the respondents. Perused the record.

3. Brief facts of the case are as follows:

               (a) Petitioner was appointed as a Constable in the Railway Protection Force in the year 1970. Later, he was promoted to Head Constable, and he retired on 30.11.2009. During the course of his service, the petitioner was served the suspension order by the 3rd respondent vide No.DAR/BSR/HC-389/PP- SC/HYB/04, Dated 04.10.2004; thereafter served charge sheet dated 25.10.2004 on the following charges:

               Charge:

               Sri B.V.Subba Rao, Head Const/389/P-SC (under suspension) is hereby charged for his gross misconduct and misleading the administration in that

               1. He misled the administration by giving false declaration and false documents that he was constructing a house in plot under survey No.33/1E, situated at Doddipatla, Grampanchayat, Kaikalur Mandal, Krishna District, A.P.

               2. He was granted Rs.2,02,500/- towards House Building Advance for the purpose of constructing a house in plot under Survey No.33/1E, situated at Doddipatla Grampanchayat, Kaikalur Mandal, Krishna District, A.P. But he has not constructed the house in the said plot as per the sanctioned plan, whichever submitted to the administration and thus misappropriated the amount sanctioned to him as HBA.

               Thus, the petitioner has shown gross misconduct and misled the administration, which is unbecoming as a member of Armed Force of The Union and thus violated rule No.146.6 of RPF Rules 1987 and thus he violated the principle of financial proprietary and by his act of misconduct, is unbecoming of a Railway servant and he violated Rule No.3, (1) (iii) of Railway Services (Conduct) Rues 1966.

               (b) The petitioner denied the charges, and therefore, a regular enquiry was conducted. As many as nine (9) documents were cited, and only one witness was cited; However the Enquiry Officer examined seven (7) witnesses and marked 12 documents as exhibits on behalf of the management side, without supplying the documents nor giving an opportunity to cross-examine the witness throughout the enquiry. The enquiry officer purposefully conducted the enquiry in the petitioner’s absence.

               (c) The enquiry officer did not consider the petitioner’s request to grant time and postpone the conduct enquiry on the ground that the petitioner’s father got admitted to the Hospital with serious illness and died on 10.03.2005 during the treatment. Petitioner’s mother who was suffering from different ailments due to old age was admitted to the Hospital in Guntur. The petitioner brought the said fact to the notice of the enquiry officer. In Despite this, the enquiry officer did not allow time for cross-examination; he examined the witnesses in his absence, and no cross-examination took place throughout the enquiry.

               (d) The main allegation is that the petitioner obtained loan of Rs.2,02,500/- towards construction of a house in the plot, and constructed the house up to plinth level and requested for releasing of 2nd installment of house building advance duly enclosing the certificate issued by Sri K.S.Panduranga Rao, PW (6), the then Section Engineer (Works), South Central Railway, Bhimavaram. In the meantime, the respondent authorities received a complaint from one Ulchi Sivaiah, R/o Pandlapalli, who claimed that the site belongs to him, alleging that the petitioner availed loan by producing bogus documents. However, it is proved in the enquiry that the petitioner is the legitimate owner of the said site as per the registration department / Government records, and the said physical verification certificate issued by PW-6 has not been looked into. And also, they have not taken into consideration the certificate issued by RPF/CCB/HYD, dated 15.03.2007, with the attestation of the local Sarpanch and the RPF Local ASI of Bhimavaram, dated 15.03.2007, wherein it is clearly stated that the petitioner constructed the building as per the approved plan.

               (e) The preliminary enquiry officer, Sri K.S.Prasad, RPF/SIB/BZA, did not examine the very complainant, who claimed that the very site belongs to him. The petitioner submitted that his brother is a local political leader and that therefore, there is political enmity against him. The complaint appears to have arisen in that background. However, neither the Preliminary Enquiry Officer nor the Domestic Enquiry Officer considered or addressed this crucial aspect while conducting the enquiry. The petitioner was unable to attend the enquiry before the enquiry officer, as he had been held-up by his father's bequest ceremony. On this count also, the enquiry report should be set aside.

               (f) In spite of the petitioner’s request to pay the subsistence allowance, the respondents did not pay the same. The Hon’ble Supreme Court in the case of Ghanshyam Das Srivastava Vs. State of Madhya Pradesh held that when the Government Servant is under suspension and pleads his inability to attend the enquiry on account of financial stringency caused by non-payment of subsistence allowance, the proceedings conducted ex parte would violate the provisions of Article 311(2) of the Constitution of India, as the person did not receive a reasonable opportunity to defend himself. Therefore, on this count also, the enquiry report shall be set aside.

4. Learned counsel for the petitioner submits that the disciplinary authority, without any justice, imposed the penalty of stoppage of the petitioner’s annual grade due increment for a period of three years with cumulative effect vide force order dated 13.06.2005 even without observing the representation pending before him for cross-examining the witnesses and the enquiry officer conducted ex parte enquiry and submitted report on 17.04.2005. Neither the enquiry officer, nor the disciplinary authority/appellate authority, nor the revisional authority came to the conclusion that the whole enquiry conducted was ex parte and the statement given by PW(6) Sri K.Panduranga Rao, Senior Engineer Works, Bhimavaram, is not taken in to consideration, as it is a competent authority to cause an enquiry about this case.

5. Learned counsel for the petitioner further submits that the punishment of stoppage of increment for a period of three years with cumulative effect is disproportionate to the alleged offence which the petitioner allegedly committed. Hence, the punishment is liable to be quashed and set aside, and he relied upon the following judgments:

               i) S. Amarjeet Singh Bhatnagar Vs. State of Punjab (1991 LIC 1829 P&M HC)

               ii) Ramesh Chandra Bansal Vs. Regional Manager, UP State Road Transport Corporation (1992 (1) CLR 588-1995(3) LLJ 328 All HC)

               Accordingly, prayed to allow the Writ Petition.

6. Learned counsel for the respondents filed a counter by contending that the petitioner was granted Rs.2,02,500/- towards House Building Advance for the purpose of constructing a house in plot under survey No.33/I E, situated at Doddipatla Grampanchayat, Kaikalur Mandal, Krishna District., A.P. But he has not constructed the house in the said plot as per the sanctioned plan, whichever submitted to the administration and thus misappropriated the amount sanctioned to him as HBA. Thus, he has shown gross misconduct and misled the administration, which is unbecoming of a member of the Armed Force of the Union and thus violated Rule No.146.4 of RPF Rules, 1987 and the principle of financial proprietary and by this act of misconduct, he violated Rule No.3(1)(iii) of Railway Services (Conduct) Rules, 1966.

7. Learned counsel for the respondents further submits that the petitioner acknowledged the charge sheet on 29.10.2004. Sri Sk. Imtiaz Ahmed, IPF Workshop/Lallaguda, was nominated as the enquiry officer to conduct the departmental enquiry against the charged employee. The enquiry officer has conducted the departmental enquiry against the charged employee, duly giving all reasonable opportunities and completed the enquiry. The enquiry officer submitted the enquiry proceedings and findings to the disciplinary authority, duly holding the charges proved. As per the rules, a copy of the enquiry report was forwarded to the charged employee to submit his final representation on 04.05.2005. On receipt of the final representation dated 20.05.2005, the case was disposed of duly awarding the punishment of stoppage of his next due increment for a period of 03 years with cumulative effect. The period of suspension was treated as on duty vide D.O.No.50/05 dated 13.06.2005 by the 3rd respondent.

8. Learned counsel for the respondents further submits that the petitioner acknowledged the Divisional Order on 25.06.2005, and submitted an appeal against the same to Deputy Chief Security Commissioner, RPF, Secunderabad, on 28.09.2005, who rejected the same vide Force Order No.03/2006 dated 05.01.2006. Against this rejection, the petitioner submitted a Revision Petition to the 2nd respondent on 21.02.2006, which was confirmed vide Force Order No.82/2006 dated 05.05.2006. Subsequently, the petitioner retired from service on 30.11.2009 on attaining the age of superannuation. Now, after 07 years of the disposal of the charge sheet, the petitioner has filed the present Writ Petition.

9. Learned counsel for the respondents further submits that the enquiry officer has given the reasonable opportunities to the petitioner during the departmental enquiry. The petitioner attended the departmental enquiry on 05.11.2004, and, in the midst of the enquiry, stated that he was not feeling well and, as such, requested 15 days’ time to attend the same enquiry. Accordingly, the enquiry was postponed to 23.11.2004, at Kaikalur Railway Station. The petitioner did not attend the enquiry on subsequent dates as well, i.e. on 23.11.2004, 13.12.2004, 27.12.2004, 24.01.2005 and 16.02.2005, on the grounds of his mother’s illness. The Enquiry Officer understood that the petitioner did not wish to attend the enquiry, as he did not want to face an embarrassing situation in the presence of the witnesses. Finally, after 03 months 10 days, the enquiry was conducted ex parte at Kaikalur and Doddipatla village, and the statements of PW-1 to PW-5 were recorded, duly marking the exhibits from Ex.P-1 to Ex.P-7, the copies of which were served to the petitioner on 18.02.2005 through his close relative by Name Sri Boyana Ramesh Babu at Chirala.

10. Learned counsel for the respondents further submits that as per the petitioner's request, the enquiry was postponed 05 times; even then, he did not attend the enquiry to prove his innocence. The petitioner attended the enquiry on 23.02.2005. Further, he attended the enquiry on 15.03.2005 and submitted an application intimating the death of his father on 10.03.2005 and requesting that the enquiry be fixed for 26.03.2005, as he had to attend his father’s death ceremony. Accordingly, the enquiry was fixed on 29.03.2005, and the preliminary statement of the petitioner was recorded, along with the statement of PW-7 the and marked exhibits P-9 to P-12. On 07.04.2005, the petitioner has submitted his final defence statement to the Enquiry Officer during the enquiry. The petitioner did not request the Enquiry Officer to cross-examine of PW-1 to PW-5 during the enquiry.

11. Learned counsel for the respondents further submits that as per the proceedings of the 2nd respondent vide Letter dated 21.09.2004, PW-2 Sri K.S.Hara Prasad, Inspector, RPF/SIB/Vijayawada, had caused an enquiry about the house construction by the petitioner on a plot in survey No.33/I/E situated at Doddipatla village. He visited Doddipatla Village on 23.09.2004 with Gram Panchayat officials i.e., Smt. M. Prema Sudha Village Surpanch (PW-4), Doddipatla village, Sri D. Venkanna (PW-3), Ward Member, Doddipatla and found only two thatched huts, one bathroom and a lavatory available on the said plot. No construction was done as per the sanctioned plan. The Inspector had prepared the site plan of the plot under Survey No.33/I/E, which was also signed by the witnesses. After completion of the enquiry, the Inspector had submitted his report to ASC/SIB/Secunderabad.

12. Learned counsel for the respondents further submits that PW-3 Sri B.Venkanna, ward member, and PW-4 Smt. M. Prama Sudha, Village Surpanch, Doddipatla Village, stated that they had accompanied PW-2 and visited the plot under survey No.33/1/E, where only 2 thatched huts with one bathroom and a lavatory were found. No building was constructed on the said plot. They also signed the mediators’ report and site plan prepared by PW-2. On receipt of the letter of PW-2, PW-1, Sri Ravi Srinivas Rao, Panchayat Secratary, Doddipatla village had verified the Adangal record of Grampanchyat Doddipatla village, on 23.09.2004, and found the letter of Sri A. Baleswami Ex. Village Sarpanch, Kaikalur Mandal, in connection with granting permission for the construction of the house in the plot owned by the petitioner under survey No.33/I/E at Doddipatla village, as a genuine one. PW-1, Sri Ravi Srinivas Rao, also verified the plot bearing Survey No.33/I/E at Doddipatla Village and found that no bailing had been constructed on the plot. Accordingly, he issued a letter to PW-2.

13. Learned counsel for the respondents further submits that PW-6, Sri K. S. Panduranga Rao, SE/Works/Bhimavaram, who issued the certificate certifying that the construction of the petitioner’s house had reached the plinth/roof level, categorically stated that he issued the said certificate only after personally inspecting the construction site at Doddipatla village. But he stated that he did not remember the date of his visit to petitioner’s plot. He also did not mention the date in his certificate Exhibit P-8. Therefore, it is difficult to believe the version of PW-6, K.S.Panduranga Rao, SE/Works Bhimavaram that he had visited the plot of the petitioner situated at Doddipatla village before issuing the certificate (Exhibit P-8). Four witnesses, i.e., PW-1 to PW-4, have stated that no building was constructed on the petitioner’s plot during their visit on 23.09.2004.

14. Learned counsel for the respondents further submits that the petitioner was under suspension from 04.10.2004 to 10.06.2005. He was permitted to leave the Headquarters from 19.11.2004 to 21.11.2004 for 03 days during suspension. He did not report back after availing 03 days permission period. Therefore, he was not paid a subsistence allowance from November 2004 to March 2005. He reported on 29.03.2005 during the suspension. He was paid a subsistence allowance from April 2004 after his report to Headquarters during suspension period. His suspension period was treated as on duty vide Divisional Order No.50/05 dated 13.06.2005. Since the suspension period from 04.10.2004 to 10.06.2005 was treated as on duty, the permission and the extended permission during the petitioner’s suspension from 19.11.2004 to 07.05.2005 were treated as leave due, subject to the availability of leave, and salary was paid accordingly.

15. Learned counsel for the respondents further submits that the initial Enquiry Officer i.e. PW-2’s report and enquiry officer’s findings in the departmental enquiry, proved that the petitioner did not construct the house for which he took House Building Advance from Railways and misappropriated the same. However, the petitioner has not pleaded guilty to the charges and stated that he constructed the house, and this has been verified even now. There was a time gap of 7 months between the date of issue of the chargesheet dated 25.10.2004 and date of submission of his final representation dated 20.05.2005 to the Disciplinary Authority. He was absent from headquarters from 19.11.2004 to 28.03.2005 during the suspension period and his whereabouts were not known. The time is more than sufficient to get the house constructed from the date of initial enquiry conducted by Inspector/SIB/Vijiyawada (PW-2) on 23.09.2004. Considering the petitioner has put up 34 years of clean service and left over the remaining 04½ years service, the disciplinary authority, i.e. the respondent-3, has taken a lenient view and awarded him the punishment of stopping his next increment for a period of 03 years with cumulative effect vide Divisional Order No.50/05 dated 13.06.2005.

16. Learned counsel for the respondents further submits that on being aggrieved by the orders of the respondent No.3, the petitioner had submitted an appeal before the Deputy Chief Security Commissioner, RPF, Secunderabad, on 28.09.2005, who rejected his appeal vide Force Order No.03/2006 dated 05.01.2006, Further he submitted a revision petition to the 2nd respondent on 21.02.2006, who has also rejected his revision petition vide F.O.No.82/2006 dated 05.05.2006. He retired from service on 30.11.2009 on attaining the age of superannuation. Now, after 07 years i.e. disposal of the charge sheet, he filed a Writ Petition. There are no merits in the Writ Petition. Accordingly, prayed to dismiss the Writ Petition.

FINDINGS OF THE COURT:

17. The brief history of the case is that the petitioner applied for a house-building advance for constructing a house on a plot in Sy.No.33/1E, situated at Doddipatla Grampanchayat, Kaikalur Mandal, Krishna District. He was granted Rs.2,02,500/- towards house-building advance for the construction of a house. Out of Rs.2,02,500/-, an amount of Rs.1,01,250/- was granted towards the 1st instalment of HBA on 26.6.2001. For the release of the 2nd instalment, he was given a declaration dt. 6.8.2001, that he constructed the house up to plinth level and requested the release of 2nd installment of HBA, duly enclosing certificates issued by the Section Engineer (works), S.C. Railways, Bheemavaram. He was granted 2nd installment of Rs.1,01,250/- on 20.08.2001.

18. The allegation of the respondent authorities that the petitioner gave a false declaration and misled the organization. In connection with the said false declaration, the petitioner was charged with gross misconduct and with misleading the administration. Charges were framed. An enquiry was conducted, and the charge was proved. Against the said, charges the punishment was imposed by DSC/HYB under his Divisional Order No.50 of 2005, dated 13.06.2005, against the petitioner, imposing a penalty of stoppage of his next increment for a period of three years, with cumulative effect. Against the said order, the petitioner filed an appeal, which was rejected on 05.01.2006. In the observation of the Revision, it is found that the petitioner has shown gross misconduct and misled the administration which is unbecoming of a member of Armed Force of the Union and thus, violated Rule No.146.4 of RPF Rules, 1987 and he violated the principle of financial proprietary and by his act of misconduct and violated the Rule No.3(1)(iii) of Railway Services (conduct) Rules 1966. Against the appellate authority order, the petitioner preferred revision and the revision was rejected as follows:

               “I have carefully gone through the appeal of the above named and the connected DAR case file. Misleading the Government by not utilizing the loan taken for the purpose is a grave crime and he cannot be excused. I, therefore, do not wish to interfere with the punishment given by the disciplinary authority.”

               Against the said order, the present Writ Petition is filed.

19. But, the fact remains that before granting of the 2nd installment, the authority sent physical verification of house construction by the petitioner in Sy.No.33/1E Doddipatla village. The physical verification report reads as follows, which is submitted by the JPF/CCB/HYB, on 15.03.2007, reads as follows:

               “On 15.3.2007, I along with ASIPF/CIB/HYD Sri T.V. Babb Rao visited to Survey No.33/1/E Doddipatla village Grama pnahcyat, Kaikaloor Mandal, Krishna District, to physical verification of the house constructed by Sri B.V. Subba Rao in the above said address, who has availed HBA loans from Railways of Rs.2,02,500/-. We have called the Sarpanch of the village Smt. Agolla Manga Devi and her husband Sri Agolla Baliswamy. In their presence, we have checked the house. The house completely constructed with RC roof towards east side land of Gudupati Jagannadan (fish pond) west side, land of Nagaboina Gangaiah, north side land of Seetha Ramaiah (fish pond) and south side Bazar and we have taken photographs of the house, the house constructed with RC roof.

20. Based on the said physical verification report only, the 2nd installment was sanctioned to the petitioner. Per contra, the enquiry report of PW.7 reads as follows:

               “It is seen from the statements of above PWs 1 to 4 and PW.6 that contrary to the statements of the PW. 1 to PW.4 Sri K.S. Panduranga Rao, SE/works/BBMR (PW.6) had stated that he had visited the above plot situated at Doddipatla village, Kaikalur Mandal, Krishna District and found that the CE had constructed his house as per the approved house building plan up to plinth/roof level. That the construction of the house is carried out in accordance with the approved plan and estimate and that the construction was carried out in cement mortor. After checking the said house construction, PW.6 stated to have issued the certificate (Ex.P8). He also stated that he do not remember the date on which he had visited the above plot of the CE situated at Doddipatla village. PW.6 had also not mentioned the date in his certificate, Ex.P8. Under these circumstances, it is difficult to believe the version of PW.6 that he had visited the plot of CE situated at Doddipatla village before issuing the certificate, Ex.P8.

21. However, the findings of the enquiry are that, the petitioner had not constructed the said house as per the sanctioned plan, which was submitted to the administration and thereby misappropriated the amount sanctioned to him as House Building Advance. Ultimately, the enquiry report reveals that the charge No. 1 and 2 with the allegations and imputations framed against the petitioner are proved.

22. An interesting point is that once their own officer sent for physical verification, and the said officer gave the report stating that the construction had taken place. But the final report proved that the petitioner had not constructed the house. However, in the entire case, there is no whisper about the said officer who had given the wrong physical verification statement before the authorities. Being in a disciplinary Force, without taking any action against the said erring officer, the entire allegation as alleged by the authorities against the petitioner cannot be considered. If the said officer had given the proper physical verification report, the entire wrong episode would not have come to light.

23. The contention of the petitioner that the enquiry officer did not postpone the enquiry even though the petitioner’s father died, and his mother fell ill, cannot be considered, as perusal of the record shows that the authorities postponed the enquiry five times. The other contention of the petitioner is that the subsistence allowance from November, 2004 to March, 2005 was not paid to him, as he did not report for duty immediately; but he reported on 29.03.2005. Despite knowing the petitioner’s pathetic situation, due to his father’s death, the respondent authorities could not take seriously. In the said circumstances, the respondent authorities’ obligation to pay the subsistence allowance from November, 2004 to March, 2005 cannot be appreciated. Though the petitioner availed the loan, as per his contention, the money is recovered from his salary at Rs.2,700/- per month. In the said circumstances, the petitioner cannot be suffered with two punishments.

24. In the above mentioned circumstances, on perusal of the record and enquiry report, the punishment imposed by the authority is liable to be reduced. Accordingly, the punishment of stoppage of Annual due increment for a period of three years with cumulative effect vide Force order No.3/2006, No.X/P.227/153/Appeal/35/2005, dated 05.01.2006 passed by the 3rd respondent in rejecting the petitioner’s appeal and the Force Order No.82/2006, vide No.X/P.2007/153/Appeal/35/2005, dated 05.05.2006 passed by the 2nd respondent, is modified to that of one increment with cumulative effect. Apart from this, the respondent authorities have to pay the petitioner subsistence allowance from November, 2004 to March, 2005.

25. With the above directions, the Writ Petition is disposed of. There shall be no orders as to costs.

As a sequel, miscellaneous applications pending, if any, in this Writ petition, shall stand closed.