A. Venkatesan vs The Union of India (UOI) and Others

Ramanujam, J.—The Petitioner herein seeks a writ of certiorarified mandamus from this Court for quashing the order of third Respondent,

dated 20th May, 1981 and to direct the Respondents to reinstate the Petitioner in service with full service benefits.

The circumstances under which the Petitioner came before this Court may briefly be stated. The Petitioner was working as an Attendant in A/C.

Coach under the Electrical Foreman A/C. Southern Railway, Madras. On 20th May, 1981 the third Respondent suddenly without any notice to

the Petitioner terminated his services alleging that he indulged in acts unbecoming of Railway Servants in that on 18th May 1981 and on 19th May

1981 while working in A/C. Coach No. 6198 by Train No. 122/18th May, 1981 he misbehaved with the passengers including ladies as well as

railway staff, unbecoming of a railway servant, thus violating Rule 3(1)(ii) and (iii) of the Railway Service Conduct Rules, 1966. Subsequently by

an order dated, 22nd May, 1981 the third Respondent has stated that the Petitioner''s services stood terminated with effect from 22nd May, 1981

instead of 20th May, 1981.

Thereafter the Deputy Station Superintendent of Madras, Southern Railway filed a complaint on 20th May, 1981 to the Sub-Inspector of

Police, Railway Police, Madras Central Station and on receipt of the said report the Railway Police booked a case in Petty Case Crime No. 561

of 1981 u/s 129(B) of the Indian Railways Act and he was also arrested and produced before the Magistrate''s Court with a charge-sheet, dated

20th May, 1981. In that case he was fined a sum of Rs. 50 by the Honorary Special Metropolitan Magistrate on the ground that he has pleaded

guilty to the charge. As against the imposition of the fine of Rs. 50 the Petitioner preferred a Criminal Revision Petition No. 59 of 1981 before the

Sixth Additional Sessions Judge, Madras. The Sessions Judge, after hearing the parties on either side allowed the criminal revision petition on the

ground that the plea of guilty is not voluntary that there was no fair trial before the trial Court and that the complaint of the Deputy Superintendent,

Central Railway Station at Madras was obviously false. In that view, the Sessions Judge ordered the refund of the fine imposed upon the Petitioner

by the trial Magistrate.

In the meanwhile, the Petitioner filed an appeal against the order of termination of service to the Divisional Railway Manager, Southern Railway,

Madras. However, it was no avail. Subsequently the Petitioner filed a petition before the third Respondent on 31st August, 1981 requesting him to

cancel his orders and enclosing a copy of the judgment of the Sessions Court. Since that petition did not evoke any response he filed a petition to

the second Respondent on 3rd October, 1981. Since no action was taken on that petition, the Petitioner sent a notice, dated 20th October, 1981

through his Counsel u/s 80 of the CPC with a request to reinstate the Petitioner in service. Only thereafter the Petitioner has approached this Court

for quashing the order of the third Respondent, dated 20th May, 1981 and to direct the Respondents to reinstate him in service.

The main ground to attack against the impugned order is that it has been passed without observing the basic principles of natural justice, that the

Petitioner has been condemned without a hearing and that as the impugned order has been passed in violation of the principles of natural justice,

the order should be taken to be void and invalid.

In the counter-affidavit filed by the Respondents, the facts referred to in the affidavit filed in support of the writ petition have not been

controverted. However, the order passed by the third Respondent is sought to be supported on the ground that. Rule 14 of the Railway Servants

(Discipline and Appeal) Rules, 1968 under which action was taken against the Petitioner does not provide for an opportunity being given to the

railway servant before passing an order under that Rule and that, therefore, the third Respondent was justified in passing an order terminating the

services of the Petitioner without giving him an opportunity to defend himself. According to the Respondents, since the said service rules have been

framed in terms of the proviso to Article 311 of the Constitution and action has been taken against the Petitioner in accordance with those rules,

there is no violation of either the provisions of Article 311 of the Constitution or of the principles of natural justice in general. It is the definite case

of the Respondents as set out in the counter-affidavit that it is not obligatory on the part of the third Respondent to issue a show-cause notice

before taking action and passing final orders Under Rule 14(ii) of the Railway Servants (Discipline and Appeal) Rules, 1968.

Thus the main question to be considered here is whether the third Respondent is under an obligation to issue a show-cause notice to the

Petitioner before taking action Under Rule 14(ii) of the Railway Servants (Discipline and Appeal) Rules as contended by the Petitioner, or whether

the third Respondent is not obliged to issue a show-cause notice and can straightaway terminate the service of the Petitioner as contended by the

Respondents. It is no doubt true, Rule 14(ii) of the said Rules does not contemplate any notice being given to the affected party before action is

taken against him thereunder and the only obligation of the third Respondent is that he must record his reasons in writing as to why it is not

reasonably practicable to hold an enquiry in the manner provided under the Rules. Normally, before a punishment is imposed on a railway servant,

it is preceded by an enquiry and as a result of the enquiry he is found to be guilty of the charges levelled against him. Therefore, in every case

where a punishment is sought to be imposed on a railway servant, an enquiry into the concerned railway servant is to be conducted and the railway

servant concerned is given an opportunity to defend himself against the action proposed. This position is clear from Rules 9 to 13 of the Railway

Servants (Discipline and Appeal) Rules, 1968. However Rule 14 makes an exception. If it is not practicable to hold an enquiry in the manner

provided in Rules 9 to 13, it is open to the disciplinary authority to straightaway impose a punishment if he is satisfied that the railway servant is

guilty of the charges, after recording reasons in writing that it is not reasonably practicable to hold an enquiry as contemplated by the other Rules.

In this case, though the authority has stated that it is not reasonably practicable to hold an enquiry, the Court is entitled to see whether on the facts

it is practicable or not for conducting the enquiry. In the instant case, the Petitioner is available for enquiry and there is no difficulty in holding an

enquiry in relation to the charges levelled against the Petitioner. It is not, therefore, possible to accept the mere ipse dixit of the third Respondent

that it is not reasonably possible to hold an enquiry in the manner provided in the other Rules. It is not therefore possible to hold that the third

Respondent was justified in not conducting an enquiry on the charges levelled against the Petitioner before passing the impugned order.

The scope and effect of Rule 14(ii) came up for consideration before this Court in Writ Petition Nos. 559 and 617 of 1981 (S. Parthasarathy

and M. Durai v. Union of India and Ors.). There also the disciplinary authority has passed order terminating the services of the railway servants

without conducting an enquiry, relying on the powers of the disciplinary authority under Rule 14(ii) and the Railway sought to sustain the orders

passed on the ground that it is not obligatory on the part of the disciplinary authority to give reasons for dispensing with the enquiry and that once

the disciplinary authority is satisfied that it is not reasonably practicable to conduct an enquiry, straight away an order of termination could be

passed. Dealing with this defence taken by the Railway, Padmanabhan, J., held that the order terminating the services of the railway servants

without a reasonable opportunity being given to the person concerned to put forward his defence cannot legally be sustained. Here we have an a

fortiori case. In this case, the Petitioner was criminally prosecuted for the same charges for which the Petitioner''s services have been terminated

and though the trial Court convicted him on the basis of an alleged plea of guilt, the Sessions Court held that the charges have not been established

and the complaint filed by the Railway authority has not been proved to be true. In the face of the order of the Sessions Court, any order by the

disciplinary authority terminating the services of the Petitioner without giving an opportunity to defend cannot be legally sustained. Even if Rule

14(ii) enables the authority to pass an order of punishment without conducing an enquiry in special circumstances, such a power should be

construed strictly as not to take away the rights of the person concerned to defend. One of he fundamental rules of natural justice is that a man

cannot be condemned unheard and here is an example of an order passed against a person without hearing him, and this is not a mere order

without legal consequences. Here is an order terminating the services of an employee without hearing him and without giving him an opportunity to

defend himself.

The scope of Rule 14(ii) has also come up for consideration before various High Courts in India as also before the Supreme Court and all the

Courts have uniformly taken the view that Rule 14(ii) by its very nature should be resorted to only in those case where the requirements provided

therein are strictly complied with and the existence of objective facts warrants the application of such a rule, such as where the delinquent is

absconding, the whereabouts are not known, that no officer could undertake an enquiry in view of the risk involved or that it is not possible to

procure witnesses as against the apparent danger from the person concerned. In The Divisional Personnel Officer, Southern Railway and Another

Vs. T.R. Chellappan and Others, the Supreme Court considered Rule 14 wherein it has teen observed:

The word ''consider'' merely connotes that there should be active application of the mind by the disciplinary authority after considering the entire

circumstances of the case in order to decide the nature and extent of the penalty to be imposed on the delinquent employee on his conviction on a

criminal charges. This matter can be objectively determined only if the delinquent employee is heard and is given a chance to satisfy the authority

regarding the final orders that may be passed by the said authority. In other words, the term ''consider'' postulates consideration of all the aspects,

the pros and cons of the matter after hearing the aggrieved person Such an inquiry would be a summary inquiry to he held by the disciplinary

authority after hearing the delinquent employee.

According to the Supreme Court, even assuming that them is no obligation on the part of the disciplinary authority to conduct an enquiry in view of

the existence of special circumstances which make it impossible for conducting an enquiry as contemplated by the rules, still the disciplinary

authority has to consider the matter as to whether the person concerned is guilty of the charges levelled against him and what is the penalty to be

levied. In all these matters, the persons concerned have to be heard and they have their say in the matter. In this case, there was not only a non-

conduct of the enquiry, but also a non-issue of a show-cause notice as to why the Petitioner should not be punished for the charges levelled against

him. Thus the impugned order passed in this case even without a notice to the Petitioner cannot in any event, be legally justified. The order is

therefore quashed and the Writ Petitioner is declared to be in service.

The writ petition is accordingly allowed. There will be no order as to costs.