JUDGMENT Ashok Bhushan, J.
1. Heard Counsel for the petitioner.
2. By this writ petition the petitioner has prayed for quashing the order of removal dated 31.8.1991 passed by the Divisional Security Commissioner, Northern Railway, Allahabad and the order dated 18.4.2001 passed by the Additional Chief Security Commissioner, Head Quarter Office, Baroda House, New Delhi. The petitioner was working as constable in Railway Protection Force. On 20.4.1990 petitioner alongwith another constable was entrusted duty to go alongwith cash. Between Etawah to Bharthana. When the petitioner along with other constable Shri R.G. Sharma, PW 1, clerk Vinod Narain Dubey, trolley men Jhallu, Hakimsingh, Mansingh and Bindeswari were going on certain currency notes were found lying on the railway track. On the instructions of Shri R.C. Sharma P.W. 1, the trolley men had collected the currency notes amounting to Rs. 3150/-. The details of the notes were noted down in duplicate copy. The petitioner and other constable pressurised the trolley men to give the money along with duplicate list to them. The railway staff on the pressurisation of the petitioner the said money along with duplicate list was given to the petitioner. The petitioner and other constable returned on the same day but but they did not make any reference of the money which was taken by them in the Roznamcha nor made any effort to deposit the money with the railway. When the amount so taken by the petitioner was not deposited the railway staff made complaint to the, higher authorities. The higher authorities enquired from the petitioner and when the petitioner was being enquired about the said amount, he misbehaved with the I.P.F./E.T.W. and subsequently on 22.4.1990 he deposited the amount in the railway booking office. The disciplinary proceedings against the petitioner in accordance with the Railway Protection Force Rules, 1987 were initiated. ; A charge memo was given giving the details of the imputations and the allegation. The copy of the charge sheet has been filed as Annexure- IA to the writ petition. The charge-sheet mentions four documents which were to be relied in the enquiry and the names of nine persons as witnesses who were proposed to be examined on behalf of the department. To the Chief Security Officer, the petitioner made request for copy of certain documents. The Chief Security Officer, permitted the petitioner to inspect the document ,which was so done. During the enquiry the petitioner again made request for copy of documents which documents were made available to the petitioner on 6.3.1991 by the Enquiry Officer. In the enquiry proceedings the petitioner was also directed by the Enquiry Officer on 20.11.1990 to give name of his defence friend along with his acceptance within a week. Again on 11.2.1991 the Enquiry Officer asked the petitioner to give the name of defence friend along with consent letter but inspite of the aforesaid two opportunities no name of defence friend was suggested. In the disciplinary enquiry the witnesses appeared on behalf of the department for proving the charge. The petitioner did not file any reply to the charge sheet and in the enquiry also he made repeated efforts for delaying the enquiry. The Enquiry Officer submitted report holding the charge No. 1 and 2 proved against the petitioner vide his letter dated 29.6.1991. After receiving the enquiry report the petitioner was informed about the enquiry report and asked to submit his reply. The petitioner choose not to submit reply even thereafter on merit but raised certain procedural lacuna in the conduct of the enquiry. The disciplinary authority vide order dated 31.3.1991 directed removal of the petitioner from service against which petitioner filed an appeal which appeal, too, has been rejected by the appellate authority vide its order dated 18.4.2001. This writ petition has been filed challenging the removal order as well as the appellate order.
3. Learned Counsel for the petitioner Sri Satish Dwivedi challenging the order contended that there has been violation of Rule 153.8 of the Railway Protection Force Rules, 1987 since the petitioner was not given opportunity to have his defence assistant due to which the entire enquiry proceedings are vitiated. Sri Dwivedi further contended that the petitioner was not supplied documents which have been asked by the petitioner which resulted in breach of principle of natural justice vitiating the entire enquiry.
4. I have considered the submissions of Counsel for the petitioner and perused the record.
5. Rule 153.8 of the Railway Protection Force Rules, 1987 provides :-
153.8. The enrolled member charged shall not be allowed to bring in a legal practitioner at the proceedings but he may be allowed to take the assistance of any other member of the Force (hereinafter referred to as "friend") where in the opinion of the Inquiry Officer may, at the request of the party charged, put ;his defence properly. Such "friend" must be a serving member of the Force of or below the rank of Sub-Inspector for the time being posted in the same division or the battalion where the proceedings are pending and not acting as a "friend" in any other proceedings pending anywhere. Such "friend" shall, however not be allowed to address the Inquiry Officer nor to cross-examine the witnesses.
6. The aforesaid rule permits taking assistance by the charged employee from any other member of the Force. In the enquiry report which is on record as Annexure- 20 to the writ petition, it is clearly mentioned that the Enquiry Officer vide his letter dated 20.11.1990 asked the petitioner to give name of his defence assistant along with his approval letter within one week. Inspite of the said letter the petitioner did not communicate any name of the defence assistant. Thereafter the enquiry was entrusted to other Enquiry Officer who again gave opportunity to the petitioner to submit the name of his defence assistant by 11.2.1991 alongwith consent letter but inspite of the second opportunity given by the Enquiry Officer petitioner did not avail the same nor gave name of any defence assistant. The enquiry Officer thereafter adjourned enquiry on several occasions. The enquiry proceeded and the witnesses on behalf of the department were examined. From the aforesaid it is clear that the petitioner was given opportunity twice to give the name of defence assistant which opportunity was not availed. The learned Counsel for the petitioner contended that the petitioner was not given ten days leave to go out of station to search defence assistant. The petitioner having given opportunity twice on 20.11.1990 and again till February, 1991 there was sufficient time to the petitioner to indicate the name of, the defence assistant,. There is no breach of Rule 153.8 of the Railway Protection Force Rules, 1987 and the submission of the Counsel for the petitioner that the entire enquiry is vitiated due to non providing defence assistant, is not accepted.
7. Coming to the second submission that the petitioner was not supplied relevant documents and the enquiry is vitiated. From the materials on record it is clear that the petitioner inspected the documents which were in the disciplinary enquiry under the orders of the disciplinary authority and again the Enquiry Officer on 6.3.1991 handed over the documents. Before the disciplinary authority as well as before the appellate authority petitioner has also pressed this submission and stated that he was not provided documents as prayed for by him. The disciplinary authority himself has considered and returned a finding that all the documents were provided which were listed in the charge sheet and the Enquiry Officer rightly did not provide documents which were not listed in the charge sheet. The appellate authority has also considered the said plea raised by the petitioner which has been dealt in paragraph 7 of the order. The appellate authority has returned finding that all the documents which were in the file and were related to the departmental proceedings were given to the delinquent and he was also informed by the Enquiry Officer on 2.4.1991 to the said effect. In the memo of appeal the petitioner has not even clearly mentioned as to which document listed in the charge sheet has not been supplied. Only general allegations have been made that the documents have not been supplied. The documents which were listed in the charge-sheet have been supplied to the petitioner which is clear from the record. There is complete compliance of Rule 153.8 of the Railway Protection Force Rules and the principle of natural justice and the petitioner cannot be allowed to say that he was not given documents. The findings has been recorded by the disciplinary authority and the appellate authority that the petitioner did not even submit reply and adopted dilatory tactics to prolong the enquiry. The petitioner after receipt of the enquiry report has not submitted any reply on merits and has raised only procedural lacuna in the enquiry. On both the submissions raised by the Counsel for the petitioner no relief can be granted to the petitioner.
8. The charges against the petitioner were serious in nature and were found proved in the disciplinary enquiry. Large number of witnesses appeared who were railway staff and supported the charge on which the Enquiry Officer submitted report and the finding of guilt has also been recorded by the disciplinary authority. The jurisdiction of this Court under Article 226 of the Constitution to interfere with the findings of fact recorded in the disciplinary enquiry is, too, limited. The ground on which this Court can interfere with the finding of disciplinary enquiry is when the findings are perverse and based on no evidence. With regard to punishment awarded to the delinquent in the enquiry the Court can interfere with the punishment only when the punishment is shockingly disproportionate to the charge. The test laid down by the apex Court in B.C. Chaturvedi v. Union of India and Ors. is to the following effect :-
18. A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being fact finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/ Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion- on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/ Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to consider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof.
9. Learned Counsel for the petitioner has lastly submitted that the removal order was not passed by the competent authority.
10. In the memo of appeal neither any such ground has been taken challenging the competence of the authority passing the removal order nor the appellate authority has noted any such submission. The petitioner having not raised the competence of the authority passing removal order, it is not open for the petitioner to press this submission before this Court.
11. In view of the foregoing discussions I do not find any merit in the writ petition warranting interference under Article 226 of the Constitution of India. The writ petition lacks merit and is dismissed.