T.S. Ramchandra Rao vs Government of India

Srinivasachari, J.—This is an application for a writ of certiorari paying that the order of the Dy. Chief Traffic Manager reducing the Petitioner from the position of a Commercial Inspector to the rank of an Assistant Station Master be quashed on the ground that the said order was illegal and beyond the powers vested in the Dy. Chief Traffic Manager. The Petitioner further prayed for an order that the Petitioner be reinstated in his original position of Commercial Inspector. We heard the arguments of the learned advocates, for the Petitioner and the Government advocate.

The Petitioner was holding the office of Commercial Inspector in the Nizam''s State Railway. The Petitioner being aggrieved by the orders of the Railway Authorities in respect of his promotion etc., submitted an appeal to the Railway Board setting forth his complaints against the officers in the Railway. He alleged in his representation to the Railway, Board that the was denied promotion during: 1915-1949 and further that a promotion to the post of Traffic Manager in the same year was denied to him, that an increment due to him in 1947 was not granted. These grievances were set forth in the form of a memorandum and the Petitioner requested that the same be forwarded to the Railway Board through the proper channel. The said memorandum, the Petitioner contended, was not forwarded, but instead a charge was framed against him for serious misconduct, for using disrespectful and objectionable language and making serious allegations against his superior officers. In the charge, however, the attention of the Petitioner was; drawn to the portions of the memorandum wherein the said disrespectful and objectionable language was said to have been used. The Petitioner was directed to show cause in writing why he should not be removed from service or punished with any of the lesser penalties specified in R. 1702 of the Railway Establishment Code. He was also called upon to submit his defence within a period of seven days After the charge sheet was given, the Petitioner submitted a reply to the charges leveled against him which is dated 6-12-1951.

In his reply to the charge the Petitioner submitted that the only action permissible under the Code for using disrespectful and improper language was the withholding of the appeal from submission, as a penalty and he also urged that this penalty could be imposed only by the Chief Traffic Manager and not by the Dy. Chief Traffic Manager. In substance his answer was that the imposition of any penalty could be only by the Chief Traffic Manager and not by the Dy. Chief Traffic Manager. After that, the Petitioner was again addressed on 13-12-1951 asking him to show cause why he could not be removed from service or punished as provided for under R. 1702 of the said Code inasmuch as he had violated R. 1719 of the Indian Railway Establishment Code. Again the Petitioner contended that the competent authority alone was entitled to withhold the appeal for infringement of instructions contained in R. 1719. After this another letter was addressed by the Dy. Chief Traffic Manager to the Petitioner stating that he had not answered the charges mentioned in the charge sheet and that he, therefore, held him responsible for serious misconduct and was proposing to demote him as Asst. Station Master. The Petitioner was called upon to show cause why this penalty could not be imposed. This procedure was followed in accordance with the provisions of R. 1712 of the Railway Establishment Code. In answer to this the Petitioner in his letter dated 26-12-1951, stated that in the absence of clarification of the points raised by him he considered the decisions and proposals of the authorities as illegal and if any action was taken the authorities would be held personally responsible and that he would be constrained to assert the fundamental rights conferred on citizens of India by the Constitution. It was after this on 16-1-1952, that the order demoting him to the rank of Assistant Station Master was served on him. The letter said "You have failed to answer the charge sheet No. E. 351/3/12-1951 and the notice No. E. 351/21-12-1951 to show cause why the (SIC) of demotion Assistant Station Master should not be imposed. You are with effect from 17-1-1952 demoted as Assistant Station Master".

It is this order that the Petitioner is now challenging and has applied to this Court for quashing the same as being illegal.

The learned advocates for the Petitioner urged before us that the provisions of Sub-Arts. (1) and (2) of Article 311 of the Constitution were not conformed to. They contended that the Petitioner had been reduced in rank without an opportunity having been given to him to show cause against the action; they further urged that this order was passed by an unauthorised person, that is to say, not by the authority by whom the Petitioner was appointed for Article 311, Sub-Art. (1) contemplates the removal and dismissal by that authority who appointed a person. Counsel for the Railway submitted that the order that was sought to be quashed was in the nature of an administrative order & therefore, a Writ of Certiorari would not lie. It was also urged that a Writ by way of Mandamus could not issue for the reason that the Railway could not be compelled to keep him in the place where he desires to be reinstated.

3 (b). The petition before us being one for the issue of Writs of Certiorari and Mandamus invoking our jurisdiction under Article 226 of the Constitution, it would be necessary to consider whether the order sought to be quashed partakes of the nature of an administrative order or could be regarded as a quasi-judicial order, for it is only in the latter case could we exercise our powers under Article 226 of the Constitution. Proceedings by way of Departmental enquiry are in our opinion, in the nature of quasi-judicial proceedings.

The learned Counsel for the Respondent relied upon the case of the - Province of Bombay Vs. Kusaldas S. Advani and Others, The test laid down by the Supreme Court in the leading case of the - ''Province of Bombay v. Khushaldas (A) is to the effect that where in order to arrive at a decision the low enjoins a judicial approach by the authority deciding then such a decision or order would be regarded as quasi-judicial order. What has to be considered is the manner in which the decision has to be arrived at. Is there any duty to decide judicially will be the question that will have to be considered. In the Supreme Court case above referred to the Chief Justice laid down that there ought to be a judicial element in the process leading to the decision. The fact that a decision of fact is arrived at by an executive authority and that decision affects the rights of parties would not matter. What is essential is the determination of the question judicially. Fazl Ali J. in the same case also observed "The real test is: ''Is there any duty to decide judicially?" Das J. who concurred with the Chief Justice and Fazl Ali J. also expressed that the real test was whether there was a duty to act judicially.

It may also be observed that in determining as to whether a particular order should be regarded as quasi-judicial or not, it would have to be considered as to whether following ingredients are present in it:

(a) a dispute or ''lis'' which contemplates the setting up of a case and an opposition; and

(b) whether the officer concerned has to weigh the pros and cons to come to a conclusion.

A ''lis'' would come in where one party put forward a claim and another contests it, a third party decides it. But it is not quite necessary that there should be two parties whose dispute is decided by another authority in order to constitute the decision of such authority as ''quasi-judicial''. It may be that in certain cases, a case is set up by one party and the authority is authorised to investigate into the matter and decide the case. In such cases if the Statute prescribes that the authority should hear the objections, institute an enquiry and make an investigation and then come to a conclusion after taking into consideration all the facts and circumstances of the case, it would still be regarded as a quasi-judicial act, provided such decision affects the rights of parties. That this is the position of the law is supported by the case of - Rex v. Electricity Commissioners 1924 1 KB 171(B). The case of the - ''Province of Bombay v. Khushaldas'' A) cannot help the learned Counsel for the Respondent because in that case their Lordships had to consider about requisition of certain premises for a public purpose under the Bombay Land Requisition Ordinance, 5 of 1947. The question arose as to whether the decision of the Government that there was a public purpose had to be arrived at after instituting an enquiry. They held that there was no such statutory duty and the Legislature had committed to the executive authority the decision as to whether land or premises is required for a public purpose, the Court could not go into the question.

The result of all these decisions is that where the decision affects the right of a party, the fact that there are no two parties one to propose and other to oppose, and a third person to decided would not take the decision out of the category of quasi-judicial decisions provided the law enjoins an enquiry into the matter by hearing objections and considering the pros and cons of the case. Decidedly in cases of this kind, such as the one before us the constitution enjoins that a member of a civil Service before he is dismissed or removed or reduced in rank should be given an opportunity to put forward his objections and the authority is expected to consider these objections and then pass orders. There are, therefore, both the ingredients viz. (i) the duty to hear objections and give a decision and (ii) such decision affected the rights of a party. We are, therefore, of opinion that that decision must be regarded as quasi-judicial. In case before the Madhya Bharat High Court which was a case of a Writ of Certiorari against an order terminating the services of an employee in the Health Ministry of Madhya Bharat the learned Judges held that no writ would lie, but in that case the facts would show that the enquiry into the allegations denied by the Civil Servant was only optional and not obligatory under the Madhya Bharat Civil Service (Punishment and Appeal) Rules, 1950, and where it was not obligatory to enquire the learned Judges held, the decision could not be regarded as a quasi-judicial act to be subjected to Certiorari - Lilawati v. State of Madhya Bharat AIR 1952 MP 105 (C). We are inclined to agree with the view expressed by the Judges of the Orissa High Court in the case of - Kashinath Patnaik Vs. Sri P.K. Kapila, I.A.S. Secretary, Supply and Transport, Govt. of Orissa, , where the learned Judges held that where there has been a contravention of CI. (2) of Article 311 of the Constitution the High Court is entitled to interfere under Article 226 of the Constitution and quash the order in Certiorari. Our view is further supported by the decision of the Calcutta High Court in the case of - Suresh Chandra Vs. Himangshu Kumar Roy and Others, .

The next argument to be considered is as to whether the Railway administration had conformed to the provisions of Article 311 (2) of the Constitution. It would appear from Article 311, Sub-arts. (1) and (2) of the Constitution that the provisions contained therein are mandatory and are not directory. Therefore, where a dismissal has been made by an authority who had no power to appoint or where a reasonable opportunity has not been given for showing cause against a contemplated action of dismissal, removal or reduction in rank, the action would be held to be void and inoperative. This article is a reproduction of Sub-sections (2) and (3) of Section 240, Government of India Act, 1935. The Federal Court of India and the Privy Council had occasion to interpret the provisions of Section 240, Government of India Act in the case of - AIR 1949 112 (Privy Council) . In the above case their Lordships of the Federal Court clearly laid down that the provisions of Section 240 corresponding to the present Article 311, were mandatory and therefore if a civil servant was dismissed by any authority subordinate to the person who appointed him, the order was inoperative. In the Government of India Act, 1915, there was no provision similar to Section 240 (1), (2) and (3), Government of India Act, 1935. Therefore, when re-enacting the Government of India Act, 1935, these provisions were incorporated providing proper safeguards.

The question came up for consideration again in - AIR 1945 47 (Federal Court) which went up to the Privy Council, vide - AIR 1948 121 (Privy Council) . While interpreting Sub-section (3) of Section 240, Government of India Act, their Lordships of the Federal Court observed that the person against whom some disciplinary action is proposed to be taken before the actual order of either dismissing, removing or reducing to a lower rank is taken, such person should be afforded a reasonable opportunity of showing cause against the proposal to reduce him or dismiss him. In the case of - Secretary of State v. I. M. Lall the point arose as to whether the Plaintiff in a suit or in an action for wrongful dismissal should be afforded an opportunity after the finding of the enquiry had been considered and the punishment decided upon. The High Court was of the opinion that this was not necessary. The High Court came to the conclusion that there was no necessity to have two enquiries and a further notice to the person against whom the charge was brought informing him about the punishment proposed to be inflicted and asking him to show cause why such punishment should not be made was not necessary. With this opinion of the High Court Varada Chari J. agreed in the Federal Court. The view of the majority consisting of the Chief Justice and Zafrullah Khan J. was ''contra''. The Chief Justice and Zafrullah Khan J. held that the person who would be dismissed or reduced in rank must know what punishment is proposed as the penalty for certain acts or commissions on his part and must be told the grounds on which it is proposed to take such action, and must be given a reasonable opportunity of showing cause why such punishment should not be imposed AIR 1945 47 (Federal Court) ''). When the matter went up before the Privy Council on appeal their Lordships agreed with the view taken by the majority of the Judges of the Federal Court and held that the provision relating to a reasonable opportunity of showing cause against the action proposed to be taken was a mandatory statutory provision. They were dealing with Section 240, Sub-sections (2) and (3), Government of India Act, corresponding to Article 311, Sub-arts. (1) and (2) of the Constitution of India. A definite conclusion as to what action is proposed to be taken has to be arrived at by the authority and then the employee should be given an opportunity to make his submission as regards the proposed action. This dictum of the Federal Court was approved of by the Privy Council on appeal AIR 1948 121 (Privy Council) ). There can be no doubt that if the action by the Railway Administration lacked the essential mandatory procedural rights enjoined by the Constitution the decision of the Railway authority would be void and inoperative.

We have to consider whether the record in this case shows that the Railway authorities acted strictly in conformity with the conditions laid down in the Statute. That the procedure warranted by law was adhered to in this case is clear from the letter No. E.352/21-12-1951 issued by the Dy. Chief Traffic Manager wherein the Dy. Chief Traffic Manager holding the Petitioner as being responsible for serious misconduct intimated to him that he proposed to demote him as Asst. Station Master and called upon him to show cause before the 27th Instant why that penalty should not be imposed. We may point out that if there has been violation of the provisions of Article 311, Sub-arts. (1) or (2) we would be justified in exercising our powers under Article 226 of the Constitution to rectify an irregularity. This is a case where the Petitioner has been reduced in rank and where a person has been reduced in rank sub-art. (2) of Article 311 says that he shall not be reduced in rank until he had been given a reasonable opportunity of showing cause against the action proposed to be taken. So far as this aspect of the case is concerned we are satisfied that the Petitioner had been given a reasonable opportunity to show cause against the action proposed to be taken. As detailed by us above, the Petitioner was furnished with a charge-sheet he was asked to give an explanation and when he failed to give an explanation the authorities issued a notice to him to state as to why action under the rules could not be taken against, him; he was asked to show cause. This he failed to do. Under those circumstances, we are of opinion, it could not be urged with success that no reasonable opportunity for showing cause had been given to the Petitioner.

(7) The next argument is that Article 311 (1) had not been conformed to. With regard to his, it has to be observed that it is only in he contingency of the person being dismissed removed that such a dismissal or removal should be effected by that authority who appointed and not otherwise. This is a case where there has been only a reduction in rank and not an absolute dismissal or removal. Thus he provisions of Article 311, Sub-arts. (1) and (2) cannot be invoked. Therefore, we come to the conclusion that neither the provisions of Article 11 (1) nor Article 311 (2) were violated. No case as been made out for the issue of a Writ of (SIC) and the result is that the application is dismissed. But having regard to the particular facts of this case, we direct that each party do bear his own costs.