Full Judgment Text
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PETITIONER:
UNION OF INDIA & ORS.
Vs.
RESPONDENT:
K. RAJAPPA MENON
DATE OF JUDGMENT:
07/10/1968
BENCH:
GROVER, A.N.
BENCH:
GROVER, A.N.
SHAH, J.C.
MITTER, G.K.
HEGDE, K.S.
CITATION:
1970 AIR 748 1969 SCR (2) 343
CITATOR INFO :
RF 1980 SC1650 (3,8)
ACT:
Conduct and Disciplinary Rules, r. 1713--Disciplinary
authority whether required to give detailed reasons for
confirming finding established at departmental enquiry.
Constitution of India, Art. 311 (2)--Second show cause
notice--If authority can make up mind tentatively before
receipt of explanation.
HEADNOTE:
After the reply of the respondent--a railway
employee--in respect of certain charges p.referred against
him was received, a departmental enquiry was held. The
Enquiring Officer found all the charges proved. A show
cause notice, was then served stating that it had been
tentatively decided by the Chief Commercial Superintendent
that the respondent should be dismissed from service. This
notice was served after the’ Chief Commercial Superintendent
had recorded an order stating that he had seen the enquiry
proceedings, that the procedure had been correctly followed,
and that he agreed with the findings of the Enquiring
Officer. The respondent submitted his explanation;
thereafter his dismissal was ordered. The respondent filed
a writ petition in the High Court. The single Judge allowed
the petition holding that the Chief Commercial
Superintendent was bound to> pass a detailed order
expressing his views about each of the charges and that a
general agreement with the findings of the Enquiry Officer
did not satisfy the requirements of r. 1713 of the Conduct
and Disciplinary Rules. This decision was affirmed by the
Division Bench. In ’appeal, this COurt,
HELD: The: appeal must be allowed.
(i) Rule 1713 does not lay down any particular form or
manner in which the disciplinary authority should record its
findings on each charge. All that the Rule requires is that
the record of the enquiry should be considered ’and
disciplinary authority should proceed’ to give its findings
on each charges. This does not and cannot mean that it is
obligatory on the disciplinary authority to discuss the
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evidence and the facts and circumstances established at the
departmental enquiry in detail and write as if it were an
order or a judgment of a judicial tribunal. The rule
certainly requires the disciplinary authority to give
consideration to the record of the proceedings which was
done by the Chief Commercial Superintendent. When he agreed
with, the findings of the Enquiry Officer that all the
charges mentioned in the charge sheet had been established
it meant that he was affirming the findings on each charge
and that would’ certainly fulfil the requirement of the
Rule. [345 H--346 D]
(ii) There was no force in the respondent’s contention
that the disciplinary authority was not entitled to have
finally made up its mind before the explanation to the
second show cause notice had been received by it and at a
stage prior to the issuance of the notice. The procedure
which is. to be followed under Art. 311(2) of the
Constitution of ’affording a reasonable opportunity includes
the. giving of two notices, One at the enquiry stage and the
other when the competent authority as a result of the
enquiry tentatively determines to inflict a particular
punishment.
344
It is quite obvious that unless the disciplinary or the
competent ’authority arrives at some tentative decision it
will not be in a position to determine what particular
punishment to inflict and a second show cause notice cannot
be issued without such a tentative determination. [346 E]
Khem Chand v. Union of India & Ors., [1958] S.C.R. 1080,
followed.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1064 of
1966.
Appeal by special leave from the judgment and order,
dated August 4, 1965 of the Kerala High Court in Writ Appeal
No. 205 of 1964.
B. Sen and S.P. Nayar, for appellant No. 1.
A.S. Nambiar and Lily Thomas, for the respondent.
The Judgment of the Court was delivered by
Grover, J. This is an appeal by special leave from the
judgment of the Kerala High Court in which the only point
which arises for decision is whether Rule 1713 of the
Conduct and Disciplinary Rules hereinafter called the Rules,
for railway servants was correctly applied and the dismissal
of the respondent, who at the material time, was an
Assistant Station Master was rightly set aside for non-
compliance with that Rule.
The facts lie within a narrow compass. In July 1963 the
respondent, who was working as an Assistant Station Master
at Chalakudy railway station was served with a statement
containing charges relating to certain matters after an
inspection report had been submitted to the authorities
concerned. After the reply of the respondent had been
received a departmental enquiry was held and the Enquiring
Officer submitted a report finding all the four charges
which. had been preferred against the respondent proved. A
show cause notice was then served in September 1963 giving
the findings of the Enquiring Officer (Assistant Commercial
Superintendent ) and it was stated that it had been
tentatively decided by the Chief Commercial Superintendent
that the respondent should be dismissed from service. This
notice was served after the Chief Commercial Superintendent
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had recorded the following order (Exh. R. 8 ):
"The employee, in his reply dated 3-8-
1963 to this charge sheet, has not accepted
the charges contained in the same. An
enquiry, therefore was arranged. It was held
by the Assistant Commercial Superintendent
Olavakkot from 22-8-63 to 29-8-1963. I have
seen the enquiry proceedings. I find that
the procedure has been followed correctly;
that the accused has been given every
reasonable opportunity for his defence and
I agree with the findings of the Enquiry
Officer
345
that all the charges mentioned in the charge-
sheet have been established. Since these are
serious charges, it is tentatively decided to
impose the penalty of dismissal from service
on Shri K. Rajappa Menon, Assistant Station
Master/Chalakudi. He should, therefore, be
asked to show cause why he should not be
dismissed from service accordingly."
He was given a week for showing cause why the proposed
penalty should not be inflicted on him. After the
explanation of the respondent had been received his
dismissal was ordered by the Chief Commercial
Superintendent.
The respondent filed a petition under Art. 226 of the
Constitution in the High Court and a number of points were
raised before the learned Single Judge. The only point
which prevailed with him Was that the Chief.Commercial
Superintendent had not recorded an order as required by Rule
1713. He examined the other contention raised on behalf of
the respondent before him that at the stage of the second
show cause notice the Chief Commercial Superintendent had
finally made up his mind which he could not or ought not to
have done until the reply or the explanation of the
respondent had been received and considered by him. In view
of a bench decision of the Kerala High Court he did not rest
his decision on the second point but decided in favour of
the respondent on the first point holding that the Chief
Commercial Superintendent had not given findings on each of
the charges. In his opinion the rule contemplated that the
evidence which had been adduced at the enquiry in relation
to each charges should be examined and considered by the
punishing authority and he should give his own assessment
and finding relating to each. individual charge which was
not done in the present case. The division :Bench on appeal
by the present appellant affirmed the judgment of the
learned Single Judge.
Now Rule 1713 provides that if the disciplinary
authority is not the Enquiring Authority-it shall consider
the record of the enquiry and. record its findings on each
charge. The argument which prevailed with the High COurt
was that the order embodied in Exh. 8 did not comply with
the aforesaid rule because findings relating to each charge
were not given after a proper discussion .and analysis
of .the: evidence produced at the departmental enquiry. In
other words, the Chief CommerCial Superintendent .was bound.
to pass a detailed order expressing his views about each
charge and that a general agreement with the findings of the
Enquiry Officer did not satisfy the requirements of Rule
1713.
We are altogether unable to agree with the view
expressed by the High Court. Rule 1713 does not lay down
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any particular sup. cI/69--5
346
form or manner in which the disciplinary authority should
record its findings on each charge. All that the Rule
requires is that the record of the enquiry should be
considered and the disciplinary authority should proceed to
give its findings on each charge. This does not and cannot
mean that it is obligatory on the disciplinary authority to
discuss the evidence and the facts and circumstances
established at the departmental enquiry in detail and write
as if it were an order or a judgment of a judicial tribunal.
The rule certainly requires the disciplinary authority to
give consideration to the record of the proceedings which,
as expressly stated in Exh. R. 8, was done by the Chief
Commercial Superintendent. When he agreed with the findings
of the Enquiry that all the charges mentioned in the charge
sheet had been established it meant that he was affirming
the findings on each charge and that would certainly fulfil
the requirement of the Rule. The Rule after all has to be
read not in a pedantic manner ,but in a practical and
reasonable way and so read it is difficult escape from the
conclusion that the Chief Commercial Superintendent had
substantially complied with the requirements of the Rule.
The interference by the High Court, therefore, on the ground
that there had been non-compliance with Rule 17 13 was not
justified.
Learned counsel for the respondent has sought to raise
the second point which the High Court had declined to
decide, namely, that the disciplinary authority was not
entitled to have finally made up its mind before the
explanation to the second show cause notice had been
received by it and at a stage prior to the issuance of the
notice. Such a contention is wholly untenable in view of
the decisions of this Court. It has been made quite clear
in Khem Chand v. The Union of India & Ors.(1) that the
procedure Art. 311 (2) of the Constitution of affording a
reasonable opportunity includes the giving of two notices,
one at the enquiry stage and the other when the competent
authority as a result of the enquiry tentatively determines
to inflict a particular punishment. It is quite obvious
that unless the disciplinary or the competent authority
arrives at some tentative decision it will not be in a
position to determine what particular punishment to inflict
and a Second show cause notice cannot be issued without
such a tentative determination.
The appeal is consequently allowed and the judgment of
the High Court is hereby set aside. The petition filed by
the respondent under Art. 226 shall stand dismissed. No
order as to costs.
Y.P. Appeal allowed.
(1) [1958] S.C.R. 1080.
347