Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 4835 – 4839 OF 2007
Southern Railway Officers Assn. and another …. Appellants
Versus
Union of India and others …. Respondents
WITH
CIVIL APPEAL NO. 4894 OF 2007
The Workshop Manager and another …. Appellants
Versus
G. Lakshmanan …. Respondent
WITH
CIVIL APPEAL NO. 4895 OF 2007
Union of India and others …. Appellants
Versus
P. Manoharan …. Respondent
WITH
CIVIL APPEAL NO. 5074 OF 2007
Union of India and others …. Appellants
Versus
V.S. Chandran …. Respondent
WITH
CIVIL APPEAL NO. 5074 OF 2007
Union of India and another …. Appellants
Versus
K. Babu Rajendran and others …. Respondents
And
CIVIL APPEAL NO..__________of 2009
(Arising out of SLP (C) No. 18948 of 2007)
Union of India and another …. Appellants
Versus
L. Arputharaj and others …. Respondents
J U D G M E N T
S.B. SINHA, J.
1. Leave granted in SLP (C) No.18948 of 2007.
2
2. Application of the second proviso appended to clause (2) of Article
311 of the Constitution of India and Rule 14 (ii) of the Railway Servants
(Discipline and Appeal) Rules, 1968 (hereinafter referred to, for the sake of
brevity, as the “said rules”) is involved in these appeals.
3. K. Babu Rajendran, L. Arputharaj, G. Lakshmanan, V.S. Chandran
and P. Manoharan, had been working in Carriage and Wagon Workshop of
the South Eastern Railway Administration of Union of India.
4. One S.M. Krishnan was a Deputy Chief Mechanical Engineer,
Carriage and Wagon, Golden Rock Workshop in the South Eastern Railway
Administration. He was the disciplinary authority of the workmen working
st
in the said workshop. He superannuated on 31 January, 2004. He was to
go to his native place. He was to board Train No. 6128 from Tiruchirappalli
Railway station for Chennai. Some officers had come to platform No.4 of
the said Railway station to see him off.
5. A disciplinary proceeding was initiated against L. Arputharaj. On the
basis of a report submitted by the enquiry officer, he was imposed a
punishment of dismissal from service against him. It is, however, stated that
although an appeal from the said order was dismissed, on a revision
preferred by the said delinquent official punishment of dismissal was set
3
aside and he was directed to be posted as Technician Grade III at the bottom
of the scale with non recurring effect for a period of three years.
6. The delinquent employees came to the railway station. They started
abusing Shri S.M. Krishnan with filthy language. He was said to have been
assaulted. He and his family members were threatened to be killed if he
goes to Chennai. Other railway officers were also present at the same place.
The delinquent employees allegedly created ugly scene at the platform
which was witnessed by several railway officers, staff and passengers who
were waiting at the platform. An atmosphere of violence, general
indiscipline and insubordination was prevailing at the railway station. The
other officers were also threatened, intimidated and terrorized. The matter
was reported to the Trichy Police station. On the basis of a statement made
in this behalf, a First Information Report being No. 50 of 2004 was recorded.
7. K. Babu Rajendran was arrested on the same day while others were
arrested after two weeks.
8. The incident was reported to the disciplinary authority. On the same
day a notice of dismissal from service had been issued against all the
delinquent employees, the material portion whereof read as under:-
4
“Officers and staff who were present at the station
to see him off tried to protect him and for this all
the offices were badly abused by you and others.
Further, you threatened that you will kill Shri S.M.
Krishnan and his family in his house even if he
goes to Chennai. It was a pre-planned attempt by
you to assault and cause bodily harm to Sri S.M.
Krishnan. That this was preplanned is
substantiated by the fact that a handwritten poster
was displayed in the Workshop as well as at the
Railway Station, wherein it was stated that Shri
S.M. Krishnan will die on 31.1.2004 and
cremation will be done at 14.30 hrs. Knowing that
Shri S.M. Krishnan is to travel by train No.6128 at
14.30 hrs., you along with a mob assaulted Shri
S.M. Krishnan in broad day light in presence of
several Railway Officers, staff and passengers.
Therefore, it is proved beyond doubt that you
conspired and assaulted Shri S.M. Krishnan.
Because of this incident, Shri S.M. Krishnan could
not undertake the journey as planned because of
threat to his life and was forced to undertake the
journey by road with escorts.
You have deliberately assaulted Shri S.M.
Krishnan. You threatened to kill Shri S.M.
Krishnan and his family members. In addition you
threatened to cause bodily harm to the officers
present at the platform if they tried to associate
with Shri S.M. Krishnan. Thus, you intimidated
all the officers present causing insecurity and fear
amongst officers.
You along with other associates threatened,
intimidated and terrorized all the officers. The
atmosphere of violence, general indiscipline and
insubordination is prevailing. In view of this
situation I am convinced that it is not reasonably
practicable to hold an enquiry.”
5
9. Appeals were preferred thereagainst. By separate orders, the appellate
authority dismissed the said appeals not only upon taking into consideration
the documents which were available with the disciplinary authority but also
the newspaper clippings and the confidential reports of the employees of
GOC shop. The said documents were kept confidential on their request as
leaking thereof might endanger their lives as also security of their family
members.
The appellate authority held :-
“… It indicates that you and your associates had
created an atmosphere of fear and terror in the
minds of all the Railway men of GOC shop so
much that they were afraid to comment and name
the persons who assaulted Mr. S.M. Krishnan on
31.1.2004 at platform-4.”
Dealing with the defence taken by the respondents that GOC shop
closes at 1130 hours on every Saturday followed by the weekly off period,
they were entitled to be at the railway station, it was observed :-
“The disciplinary action against you for the
incident of Mr. S.M. Krishnan which has taken
place outside the work spot is in order as per rules
3-1(iii) of RS (Conduct) Rules, 1966. I also find
6
that in your appeal, you did not deny the incident
of Mr. S.M. Krishnan at platform-4 of Trichy
railway station around 14.30 hours on 31.1.2004,
but mentioned that you were not involved in the
incident and to this effect you have not
substantiated your stand with evidence.
13. Railway is passing through a very difficult
phase for providing safe, better and economic
services to the passengers for which in all the
workshops including GOC shop, discipline of high
order is required for peaceful working. The
Railway men who create terror, indiscipline,
insubordination, violence etc. have to be dealt
drastically in the broader interest of society as well
as Railway so that the common and sincere
workmen remain free from fear of undisciplined
co-worker and do the job peacefully. The
indiscipline displayed by you and your associates
at Platform-4 has demoralized the entire hierarchy
of Railway-men including officers of the
workshop….”
10. Revision applications were filed thereagainst by the delinquent
employees except L. Arputharaj before the General Manager, Southern
Railway.
11. In the meantime the delinquent employees were acquitted from the
criminal charges. The revisional authority took the said fact into
consideration to hold :-
“As regards the judgment delivered by the
Honourable Judicial Magistrate Court IV/
7
Tiruchirapalli, you have been acquitted and
released from the criminal case No.287/2004
because of extending the benefit of doubt raised in
the case, in your favour and not on merit of the
case or on technical reasons, hence there is no
scope to review the penalty of dismissal from
service, consequent on the above judgment.”
The revisional authority, however, while dismissing the revision
application of K. Babu Rajendran, allowed in part the revision applications
of other three delinquents stating :-
“ However, by considering the case purely on
humanitarian grounds, I take a lenient view and set
aside the penalty of Dismissal from Service and
reinstate you in service with the penalty of
reduction to the lower post of Helper Gr.II in scale
Rs.2550-3200 on pay Rs.2550/ for a period of ten
years with cumulative effect and on reinstatement
you are posed to ….. Department of …. Division.
The intervening period of your absence from
duty i.e. from the date of Dismissal from Service
(31.01.2004) to the date of joining for duty on
reinstatement in service after the receipt of this
advice will be treated as ‘Non-Duty’.”
12. All the five delinquent employees filed Original Applications before
the Central Administrative Tribunal, Madras Bench against the said orders.
8
13. The Tribunal framed the following three issues for determination :-
“i) Whether the order of dismissal was
approved and issued by the competent
authority?
ii) Whether the decision not to hold the enquiry
under the relevant rules are valid or not? and
iii)
Whether on receiving representations from
the applicants for reinstatement after the
criminal case filed against them had ended
in acquittal was properly considered or not?”
14. It was held that the orders of dismissal were passed by a competent
authority. A finding of fact was also arrived at that there was no infirmity in
the action of the authority for dispensing with the enquiry leading to the
dismissal of the delinquent employees. While upholding the exceptional
jurisdiction exercised by the disciplinary authority, it was observed that the
appellate as also the revisional authority failed to consider the aspect of
acquittal of the accused in the criminal case. It was furthermore observed
that there was no reason as to why the cases of L. Arputharaj and K. Babu
Rajendran should not have been considered at par with the other three
delinquent employees. The Tribunal passed a peculiar order inasmuch as
while declining to interfere with the orders passed by the revisional authority
in the cases of three employees, namely - P. Manoharan, G. Lakshmanan
9
and V .S. Chandran. the orders of dismissal passed against L. Arputharaj and
K. Babu Rajendran were set aside.
15. Both the parties preferred writ applications thereagainst. By reason of
th
a common judgment and order dated 20 June, 2007, the writ applications
filed by Union of India were dismissed and those of the aforementioned
three delinquent employees were allowed.
16. All the delinquent employees were ordered to be reinstated in service
in their original position, with all service benefits and back wages, from
31.1.2004, as if they were continuing in their respective positions without
any break.
17. Two sets of appeals have been preferred before us – one by the Union
of India and the other by Southern Railway Officers Association and others.
18. The leaned Additional Solicitor General Mr. Amarendra Sharan,
appearing on behalf of the Union of India, and Mr. K.V. Viswanathan,
learned counsel appearing on behalf of the Association, inter alia
contended:-
10
i) That the High Court committed a serious error in passing the
impugned judgment in so far as it failed to take into
consideration that the disciplinary authority, the appellate
authority and the revisional authority assigned sufficient and
cogent reasons for dispensing with the holding of the
disciplinary inquiry.
ii) The judgment of acquittal passed in favour of the delinquent
employees by itself could not be a ground for interfering with
the disciplinary proceedings particularly when the conditions
precedent therefor were satisfied.
iii) The orders of dismissal, having not been passed on any
irrelevant or extraneous considerations and exceptional
situations found to be obtaining at the relevant time and in view
of the fact that the officers who worked as Enquiry Officer and
the disciplinary authority were required to be granted due
protection so as to inspire confidence in them that the workmen
would not take law in their own hands, it was a case where Rule
14 of the said Rules could have been invoked.
11
19. Mr. A.K. Ganguli, learned senior counsel appearing on behalf of the
respondents, on the other hand, submitted :-
i) That the matter should be considered on the touchstone of the
st
order of the disciplinary authority dated 31 January, 2004 and
not on the basis of any subsequent evidence which had been
collected by the appellate or the revisional authority.
ii) In view of the second proviso appended to clause (2) of Article
311 of the Constitution of India and Rule 14 of the said Rules,
providing for exception to the general rules that a disciplinary
proceeding should ordinarily be held for the purpose of
punishing a delinquent officer, the constitutional protection
granted in favour of the employees must be held to have been
fulfilled.
iii) As the incident had taken place in a public place in broad day
light, there was absolutely no reason as to why a disciplinary
proceeding could not have been held keeping in view the fact
that the passengers travelling in the train and the other officers
12
of the railway administration could have been examined at the
disciplinary proceeding.
iv) The delinquent employees having been acquitted by the
criminal court on the self same charges wherein the
complainant Shri S.M. Krishnan examined himself as PW-1,
the impugned judgment does not suffer from any legal
infirmity.
v) The reasons recorded by the disciplinary authority are self-
contradictory and there being no material in support of the
conclusion that it was not reasonably practicable to hold a
disciplinary proceeding, the finding of fact having been arrived
at by the High Court that it was possible to hold a disciplinary
proceeding, the impugned judgment does not warrant any
interference.
vi) Union of India having given an undertaking before the High
Court to comply with the directions issued by it, has waived its
right to prefer the appeals.
13
20. Part XIV of the Constitution of India deals with the services under the
Union and the States. Article 309 deals with recruitment and conditions of
service of persons serving the Union or a State. Article 310 deals with
tenure of office of persons serving the Union or a State. Article 311 deals
with dismissal, removal or reduction in rank of persons employed in civil
capacities under the Union or a State. Clause (1) of Article 311 provides
that an order of dismissal or removal from service shall not be passed by an
authority subordinate to that by which the employee was appointed. Clause
(2) of Article 311 of the Constitution of India and the second proviso
appended thereto reads as under :-
“Article 311 - Dismissal, removal or reduction in
rank of persons employed in civil capacities under
the Union or a State
(1) ….. ……
( 2 ) No such person as aforesaid shall be dismissed
or removed or reduced in rank except after an
inquiry in which he has been informed of the
charges against him and given a reasonable
opportunity of being heard in respect of those
charges.;
Provided that where it is proposed after such
inquiry, to impose upon him any such penalty,
such penalty may be imposed on the basis of the
evidence adduced during such inquiry and it shall
not be necessary to give such person any
14
opportunity of making representation on the
penalty proposed:
Provided further that this clause shall not apply--
(a) where a person is dismissed or removed or
reduced in rank on the ground of conduct
which has led to his conviction on a criminal
charge; or
(b) where the authority empowered to dismiss
or remove a person or to reduce him in rank is
satisfied that for some reason, to be recorded
by that authority in writing, it is not
reasonably practicable to hold such inquiry; or
(c) where the President or the Governor, as
the case may be, is satisfied that in the interest
of the security of the State, it is not expedient
to hold such inquiry.”
21. Indisputably holding of an inquiry, if any misconduct is alleged on the
part of the delinquent official, is obligatory wherein the delinquent employee
is to be informed of the charges against him and given a reasonable
opportunity of being heard in respect thereof. The second proviso appended
thereto, however, makes three exceptions in regard to constitutional
requirement to hold an enquiry. clause (b) whereof provides that in a case
where the disciplinary authority is satisfied that it is not reasonably
practicable to hold such enquiry, subject of course to the condition that
therefor reasons are to be recorded in writing. Recording of reasons, thus,
provides adequate protection and safeguard to the employee concerned.
15
It is now well settled that reasons so recorded must be cogent and
sufficient. Satisfaction to be arrived at by the disciplinary authority for the
aforementioned purpose cannot be arbitrary. It must be based on objectivity.
22. The question came up for consideration before a Bench of this Court
in Union of India and another v. Tulsiram Patel [ AIR 1985 SC 1416 ]
wherein this Court opined that the reasonable practicability of holding an
inquiry is a matter of assessment to be made by the disciplinary authority.
The concerned authority is generally on the spot and knows what has been
happening. It was observed :-
“It is because the disciplinary authority is the best
judge of this that clause (3) of Article 311 makes
the decision of the disciplinary authority on this
question final. A disciplinary authority is not
expected to dispense with a disciplinary inquiry
lightly or arbitrarily or out of ulterior motives or
merely in order to avoid the holding of an inquiry
or because the Department’s case against the
government servant is weak and must fail. The
finality given to the decision of the disciplinary
authority by Article 311(3) is not binding upon the
court so far as its power of judicial review is
concerned and in such a case the court will strike
down the order dispensing with the inquiry as also
the order imposing penalty.”
16
It was furthermore held
“133. The second condition necessary for the valid
application of clause ( b ) of the second proviso is
that the disciplinary authority should record in
writing its reason for its satisfaction that it was not
reasonably practicable to hold the inquiry
contemplated by Article 311(2). This is a
constitutional obligation and if such reason is not
recorded in writing, the order dispensing with the
inquiry and the order of penalty following
thereupon would both be void and
unconstitutional.
134. It is obvious that the recording in writing of
the reason for dispensing with the inquiry must
precede the order imposing the penalty. The reason
for dispensing with the inquiry need not, therefore,
find a place in the final order. It would be usual to
record the reason separately and then consider the
question of the penalty to be imposed and pass the
order imposing the penalty. It would, however, be
better to record the reason in the final order in
order to avoid the allegation that the reason was
not recorded in writing before passing the final
order but was subsequently fabricated. The reason
for dispensing with the inquiry need not contain
detailed particulars, but the reason must not be
vague or just a repetition of the language of clause
( b ) of the second proviso. For instance, it would be
no compliance with the requirement of clause ( b )
for the disciplinary authority simply to state that he
was satisfied that it was not reasonably practicable
to hold any inquiry…..”
The said principles have been reiterated in a large number of
subsequent decisions. We may notice some of them.
17
In Satyavir Singh v. Union of India, [ (1985) 4 SCC 252], this Court
held :-
“21. The point which was next urged in support of
the contention that the impugned orders were
passed mala fide was that even though co-workers
may not have been available as witnesses, there
were policemen and police officers posted inside
and outside the building and they were available to
give evidence and that superior officers were also
available to give evidence. The crucial and
material evidence against the appellants would be
that of their co-workers for these co-workers were
directly concerned in and were eyewitnesses to the
various incidents. Where the disciplinary authority
feels that crucial and material evidence will not be
available in an inquiry because the witnesses who
could give such evidence are intimidated and
would not come forward and the only evidence
which would be available, namely, in this case, of
policemen, police officers and senior officers,
would only be peripheral and cannot relate to all
the charges and that, therefore, leading only such
evidence may be assailed in a Court of law as
being a mere farce of an inquiry and a deliberate
attempt to keep back material witnesses, the
disciplinary authority would be justified in coming
to the conclusion that an inquiry is not reasonably
practicable. The affidavit filed by the Joint
Director, Research and Analysis Wing, Cabinet
Secretariat, Hari Narain Kak, who had passed the
impugned orders, sets out in detail the various acts
of intimidation, violence and incitement committed
by each of the appellants. Copies of the written
reasons for dispensing with the inquiry in the case
of the appellants have also been annexed to the
said affidavit. It is clear from a perusal of the said
affidavit and its annexures that the police officers,
policemen and senior officers could not have
possibly given evidence with respect to all these
acts. The said affidavit further states that the senior
officers were also intimidated and were threatened
with dire consequences if they gave evidence.
Further, grievances were made against the senior
18
officers of the RAW in the said charter of demands
submitted by the said Association and the evidence
of senior officers would have been attacked as
being biased and partisan. There is thus no
substance in this point also.”
In Kuldip Singh v. State of Punjab, [ (1996) 10 SCC 659 ], this Court
held :-
“7. At our direction made on 22-4-1996 in this
matter, the learned counsel for the State has
produced the original record relating to the
appellant’s dismissal along with translated copies
of the relevant documents. The first document
placed before us by the learned counsel for the
State is the copy of the FIR No. 219 of 1990 dated
24-11-1990. It is based upon the statement of Head
Constable Hardev Singh, who was posted as
gunman with Shri Harjit Singh, Superintendent of
Police (SP) (Operations). The FIR speaks of the
jeep (in which the said SP was travelling along
with certain police personnel) being blown up
killing the said SP and few other police officials.
The next document placed before us is the case
diary pertaining to the said crime containing the
statement of the appellant, Kuldip Singh. In his
statement, Kuldip Singh did clearly state about his
association with certain named militants, the plot
laid by them to kill Shri Harjit Singh,
Superintendent of Police, Tarn Taran by placing a
bomb and the manner in which they carried out the
said plot. He also stated that he and his militant
companions planned to plant a bomb in the office
of SSP, Tarn Taran but that the police officers
came to know of the said plan, thus foiling their
plan. The learned counsel for the State of Punjab
did concede that except the aforesaid statement of
admission/confession of the appellant, there was
no other material on which the appellant could be
held guilty of conduct warranting dismissal from
service.”
19
This Court in Union of India v. R. Reddappa, [ (1993) 4 SCC 269 ]
held as under :-
“5. More than a decade has gone by since these
employees were dismissed for participating in
strike called by the Union recognised by the
Railways. But end has not reached. Barring
appellate and revisional authority whose discretion
too was attempted to be curtailed by issuing
circular no court or tribunal has found the orders to
be well founded on merits. True the jurisdiction
exercised by the High Court under Article 226 or
the tribunal is not as wide as it is in appeal or
revision but once the court is satisfied of injustice
or arbitrariness then the restriction, self-imposed or
statutory, stands removed and no rule or
technicality on exercise of power, can stand in way
of rendering justice. We are not impressed by the
vehement submission of the learned Additional
Solicitor General that the CAT, Hyderabad
exceeded its jurisdiction in recording the finding
that there was no material in support of the finding
that it was not reasonably practicable to hold an
enquiry. The jurisdiction to exercise the power
under Rule 14(ii) was dependent on existence of
this primary fact. If there was no material on which
any reasonable person could have come to the
conclusion as is envisaged in the rule then the
action was vitiated due to erroneous assumption of
jurisdictional fact therefore the Tribunal was well
within its jurisdiction to set aside the orders on this
ground. An illegal order passed by the disciplinary
authority does not assume the character of legality
only because it has been affirmed in appeal or
revision unless the higher authority is found to
have applied its mind to the basic infirmities in the
order. Mere reiteration or repetition instead of
adding strength to the order renders it weaker and
more vulnerable as even the higher authority
constituted under the Act or the rules for proper
appraisal shall be deemed to have failed in
discharge of its statutory obligation.”
20
In Indian Rly. Construction Co. Ltd. v. Ajay Kumar, [(2003) 4 SCC
579], this Court held :-
“12. It is fairly well settled that the power to
dismiss an employee by dispensing with an
enquiry is not to be exercised so as to circumvent
the prescribed rules. The satisfaction as to whether
the facts exist to justify dispensing with enquiry
has to be of the disciplinary authority. Where two
views are possible as to whether holding of an
enquiry would have been proper or not, it would
not be within the domain of the court to substitute
its view for that of the disciplinary authority as if
the court is sitting as an appellate authority over
the disciplinary authority. The contemporaneous
circumstances can be duly taken note of in arriving
at a decision whether to dispense with an enquiry
or not. What the High Court was required to do
was to see whether there was any scope for judicial
review of the disciplinary authority’s order
dispensing with the enquiry. The focus was
required to be on the impracticability or otherwise
of holding the enquiry.”
23. The law laid down by this Court being clear and explicit, the question
which would arise for our consideration is whether in then prevailing
situation, what a reasonable man taking a reasonable view would have done.
24. The High Court in its judgment opined :-
i)
That the statement of the disciplinary authority that “I am
convinced that it is not reasonably practicable to hold an
21
inquiry” is against the dicta laid down by this Court in Tulsiram
Patel (supra).
ii) In the absence of any reason, much less recorded, as has been
mandated under the Rule, to show that it was not reasonably
practicable to hold a disciplinary inquiry, we are of the opinion
that the discretionary power was exercised for extraneous
purpose to dismiss the delinquents and that the same is arbitrary
and perverse since no reasonable person could form such an
opinion on the given material and thus the impugned orders of
dismissal are hit by malice also. The alleged incident and the
impugned orders of dismissal were all dated 31.1.2004 which
shows the haste in which the disciplinary authority has acted.
iii) While invoking the stringent extraordinary provisions like Rule
14(ii), principles of natural justice require every care to be
taken by the concerned authorities. Any haste in invoking such
stringent provisions, without even complying with the
mandatory requirements of the provision, would make such
decision of the disciplinary authority illegal, being an abuse of
power conferred upon it.
22
iv) It can very well be held that the impugned orders of dismissal
suffer from want of materials and in the absence of any material
to substantiate the mere oral stand of the Department that
holding an inquiry was not reasonably practicable, without
offering any reasons, much less in writing, as mandated by law,
the impugned orders of dismissal are liable to be quashed.
v)
In the case in hand, since the authorities have invoked the
extraordinary power under Rule 14(ii) dispensing with the
inquiry, and further since the alleged incident was held to be
not proved by the criminal court, after thorough trial, the
appellate and revisional authorities ought to have considered
the said aspect of acquittal while imposing the punishment.
Therefore, we are of the view that the fact of acquittal is a
circumstance to be considered while awarding punishment in
this case.
25. We with respect are unable to agree therewith.
23
st
The disciplinary authority in its order dated 31 January, 2004
categorically stated :-
i) That the delinquent employees attempted to cause bodily harm
to Shri S.M. Krishnan ; created an ugly scene which brought a
bad name to the railway ; officers who tried to protect Shri S.M.
Krishnan were badly abused ; Shri S.M. Krishnan and his
family were threatened to be killed if he goes to Chennai ; it
was a pre-planned attempt as a handwritten poster was
displayed in the workshop as well as at the railway station
wherein it was stated that Shri S.M. Krishnan will die on
31.1.2004 and his cremation will be done at 1430 hours when
train No.6128 leaves the railway station.
ii) That all of them have conspired and assaulted Shri S.M,.
Krishnan as a result whereof he could not undertake the journey
and had to go by road with escort.
iii)
The formality of holding a disciplinary proceeding was
dispensed with stating :-
24
“ You along with other associates
threatened, intimidated and terrorized all the
officers. The atmosphere of violence,
general indiscipline and insubordination is
prevailing. In view of this situation I am
convinced that it is not reasonably
practicable to hold an enquiry.”
It was concluded :-
“ I, therefore, in exercise of the powers
conferred upon me under rule 14(ii) of RS (D&A)
Rules, 1968, hereby dismiss you from Railway
Service with effect from 31/1/2004 (A/N). You
are required to handover the railway property in
your custody. You are also required to vacate the
Railway quarters, if in occupation, within one
month from the date on which a copy of this notice
is delivered. You are hereby advised that under
Rule 18 and 19 of the Railway Servants (D&A)
Rules 1968, you may prefer an appeal against
these orders to CWM/GOC provided that :
i. The appeal is preferred within a
period of 45 days from the date on which a copy of
this notice is delivered.
ii. The appeal is to be preferred in your
own name and presented to the authority to whom
the appeal lies and does not contain any
disrespectful and improper language.”
26. An order of a disciplinary authority in a case of this nature, as laid
down by this Court in Tulsiram (supra), must be judged by a Court
25
exercising power of judicial review by placing himself in his arm chair. The
disciplinary authority was a man at the spot. He acted on the basis of a
report made to him. He also knew about the written poster having been
displayed. The atmosphere which was prevailing in the workshop must be
known to him. Not only the disciplinary authority but also the appellate
authority, having regard to the materials brought on record, arrived at the
said finding.
27. Submission of Mr. Ganguli that the appellate authority could not rely
upon any other material may not be entirely correct. In terms of Rules 18
and 19 of the said Rules, the delinquent employees were entitled to prefer an
appeal. The appellate authority was entitled to consider the entire fact
situation. The appeal provides for a post-decisional hearing to the employee
concerned. All defences must have been taken by them. In Ram Chander
v. Union of India and others, [ (1986) 3 SCC 103 ], this Court relying upon
Tulsiram (supra) opined as under :-
“In Satyavir Singh v. Union of India there is an
attempt made to analyse the ratio dicidendi of the
majority decision in Tulsiram Patel case and the
nature of the remedies left to the civil servant at
pp. 276-81 of the Report. If that be so, in a case
governed by one of the clauses of the second
proviso to Article 311(2) or an analogous service
26
rule, there is still all the more reason that in cases
not governed by the second proviso, a civil servant
subjected to disciplinary punishment of dismissal,
removal or reduction in rank under clause (2) of
Article 311 would have these remedies left to him.
Virtually this is tantamount to a post-decisional
hearing.”
.
The appellate order, in our opinion, satisfies the dicta laid down in
Ram Chander (supra)
28. While, thus, considering as to whether there had been enough material
before the disciplinary authority for the purpose of arriving at its satisfaction
that it was not reasonably practicable to hold departmental proceedings, the
appellate authority, in our opinion, was entitled to consider the situation
prevailing from the confidential reports submitted by other employees. They
were not relied upon for the purpose of proving misconduct but for the
purpose that in the situation, which was prevailing, whether it was
reasonably practicable to hold an enquiry. There is no dispute that the
protection accorded to an employee by reason of the constitutional provision
of mandate of recording of reasons is of great significance. Such reasons, in
our opinion, in the instant case, have been recorded.
27
29. The High Court, in our opinion, was also not correct in opining that an
immediate action, which was taken, was done in haste. It was, in fact, a case
where an immediate action was absolutely essential.
30. This Court in Ajit Kumar Nag v. General Manager (P.J.), Indian Oil
Corporation Ltd., Haldia and Ors [ (2005) 7 SCC 764 ] noticed the dicta
laid down in Tulsiram Patel (supra), which reads as under :-
“not taking prompt action may also be construed
by the trouble-makers as a sign of weakness on the
part of the authorities and thus encourage them to
step up their activities or agitation. Where such
prompt action is taken in order to prevent this
happening, there is an element of deterrence in it
but this is an unavoidable and necessary
concomitance of such an action resulting from a
situation which is not of the creation of the
authorities."
31. So far as the finding of the High Court that the orders of dismissal
suffer from want of material, is concerned, the orders of the disciplinary
authority themselves disclose existence of sufficient materials. Before the
statutory authorities, the incident was not denied. Lodging of the first report
was also not denied. The fact that one of the delinquent officials was
arrested on the same day was not denied. Arrest of others after a period of
two weeks also stood admitted. Display of handwritten poster both at the
28
workshop and at the railway station had also not been denied. We do not
find that before the High Court the delinquent employees brought on record
any material that the grounds stated in the orders of dismissal were wholly
non-existent. No mala fide on the part of the disciplinary authority was
attributed.
32. It is not the case of the delinquent employees that the disciplinary
authority in passing the said order took into consideration any irrelevant fact
not germane therefor or failed to take into consideration any relevant fact.
33. Acquittal in a criminal case by itself cannot be a ground for interfering
with an order of punishment imposed by the disciplinary authority. The
High Court did not say that the said fact had not been taken into
consideration. The revisional authority did so. It is now a well settled
principle of law that the order of dismissal can be passed even if the
delinquent official had been acquitted of the criminal charge.
In Sahadeo Singh v. Union of India, [(2003) 9 SCC 75], this Court
held:-
29
“7. Learned counsel for the appellants, as stated
above, strongly relied upon the judgment of this Court
in the case of Singasan Rabi Das . A perusal of this
case shows that the observations of this Court in the
said case do not apply to the facts of the present case.
In that case, the Railways gave an excuse that it is not
feasible or desirable to procure the witnesses because
they were likely to suffer personal humiliation and
may become the targets of acts of violence. This
opinion expressed in the said case was held to be not
justified as could be seen from the said judgment
because of lack of material produced by the Railways,
hence, this Court proceeded on the basis that on facts
of that case, the Railways were only trying to protect
the witnesses and in fact there was no reasonable
apprehension that the witnesses will not appear before
the inquiry officer. That is not the case in these
appeals, as noticed by us hereinabove. The three
preliminary enquiries made on the spot, clearly
established the fact that though people have witnessed
the theft of rice bags in which incident these
appellants are involved, they are not willing to come
forward because they apprehend danger to their lives.
The apprehension of danger to life in this appeal is not
that of the inquiry officer but is that of the witnesses
themselves. Therefore, we do not think the appellants
can take advantage of the observations of this Court in
the case of Singasan Rabi Das .”
34. This Court upon perusal of the entire record satisfied itself that the
same was sufficient to dispense with the enquiry.
35. We may also notice a decision of this Court in Prithipal Singh v.
State of Punjab, [ (2006) 13 SCC 314 ] wherein the delinquent official was
exonerated of the charges and the departmental proceedings were dropped,
but despite the same the department, taking recourse to clause ( b ) of the
30
second proviso appended to clause (2) of Article 311 of the Constitution of
India, dismissed the delinquent employee. It was in the aforementioned
situation, this Court opined :-
“6. It is not in dispute that pursuant thereto or in
furtherance of the said order dated 18-10-1988, the
appellant was reinstated in service. Thereafter the
departmental proceedings were held and therein
the charges, having not been proved, were
dropped. Once in the disciplinary proceedings the
appellant was exonerated of the charges framed
against him, the question of taking recourse to
Clause ( b ) of the second proviso appended to
Clause (2) of Article 311 of the Constitution of
India did not and could not arise. It is unfortunate
that although, the same had been duly noticed by
the learned trial Judge, it failed to receive due
attention of the appellate court as also of the High
Court. The very purpose, for which the said
provision was enacted, had lost its relevance once
a departmental proceeding was held. The Director
General of Police, while passing the order dated 5-
2-1990, furthermore failed to take into
consideration that in an appeal preferred by the
delinquent from such an order it was obligatory on
the part of the disciplinary authority to produce all
records to show that there were enough materials
before the disciplinary authority to arrive at a
positive and categorical finding that in the
departmental proceeding the witnesses were not
likely to depose. It was not done. Resultantly, the
entire proceeding became vitiated in law.”
( See also Tarsem Singh v. State of Punjab, [ (2006) 13 SCC 581 ].
36. Regarding submission of the learned senior counsel for the
respondents that the Union of India had waived its right to maintain special
leave petition by undertaking to comply with the order of the High Court,
31
reliance has been placed on Thacker Hariram Motiram v. Balkrishan
Chatrabhu Thacker, [1989 Supp (2) SCC 655]. That case related to a rent
control matter. It refused to exercise its discretionary jurisdiction under
Article 136 of the Constitution of India stating :-
“It appears that the undertaking was affirmed on
November 9, 1984 wherein it was stated that the
appellant would vacate and give vacant possession
of the suit premises by 31-12-1985 i.e., to say after
one year if “by that time no stay order from the
Supreme Court is received as I intend to file an
appeal in the Supreme Court”. This undertaking
filed by the appellant in our opinion is in clear
variation with the oral undertaking given to the
learned Judge which induced him to give one
year’s time. We do not wish to encourage this kind
of practice for obtaining time from the court on
one plea of filing the undertaking and taking the
different stand, in applications under Article 136 of
the Constitution. In that view of the matter the
interim order is vacated and we direct that the
appellant should hand over possession to the
respondents forthwith.”
37. The said judgment is not an authority for the proposition that a right
of appeal can be waived only because an undertaking had been given to
comply with the order.
On the other hand in P.R. Deshpande v. Maruti Balaram Haibatti, [
(1998) 6 SCC 507 ], a three Judge Bench of this Court held :-
“11. A party to a lis can be asked to give an
undertaking to the court if he requires stay of
32
operation of the judgment. It is done on the
supposition that the order would remain
unchanged. By directing the party to give such an
undertaking, no court can scuttle or foreclose a
statutory remedy of appeal or revision, much less a
constitutional remedy. If the order is reversed or
modified by the superior court or even the same
court on a review, the undertaking given by the
party will automatically cease to operate. Merely
because a party has complied with the directions to
give an undertaking as a condition for obtaining
stay, he cannot be presumed to communicate to the
other party that he is thereby giving up his
statutory remedies to challenge the order. No doubt
he is bound to comply with his undertaking so long
as the order remains alive and operative. However,
it is open to such superior court to consider
whether the operation of the order or judgment
challenged before it need be stayed or suspended
having regard to the fact that the party concerned
has given undertaking in the lower court to abide
by the decree or order within the time fixed by that
court.”
38. For the reasons aforementioned the impugned judgment cannot be
sustained. The same as well as the judgment of the Tribunal are set aside
accordingly. The appeals are allowed. No costs.
……………………………J.
( S.B. Sinha )
……………………………J.
( Cyriac Joseph )
New Delhi
August 4, 2009
33