Union of India (UOI) vs Salil Kumar Bose

Sankar Prasad Mitra, C.J.—This appeal arises out of the recent Railway strike. The Petitioners-Respondents were removed from their services in the Eastern Railway. The strike began on May 8, 1974. In this judgment we shall specifically deal with the case of Salil Kumar Bose, the Petitioner-Respondent No. 1. The facts relating to Ajit Kumar Lahiri, the Petitioner-Respondent No. 2, are practically the same and our decision on Salil Kumar Bose would cover the case of Ajit Kumar Lahiri as well. Both of them were employees of the Eastern Railway and were removed from service by the appropriate authority''s order passed on May 23, 1974.

Most of the legal contentions rafted on behalf of the Petitioners-Respondents in the connected rule have been dealt with and disposed of by our judgment in Chief Mechanical Engineer, Eastern Railway and Anr. v. Jyoti Prosad Banerjee and Ors. (1975) 1 C.L.J. 537. In the instant appeal, a new point had been raised which was neither raised nor considered in the Chief Mechanical Engineer''s case.

In all these matters the Disciplinary Authority dispensed with the inquiry provided in Pt. III of the Railway Servants (Discipline and Appeal) Rules, 1968, for imposition of major penalties. He has recorded the reasons for dispensing with the inquiry. He had before him the reports of the local superior officers. He considered these reports and was satisfied that in the circumstances mentioned in the reports it was not reasonably practicable to hold the statutory enquiry. He passed orders of removal which were challenged before the trial Court under Article 226 of the Constitution. Amiya Kumar Mookerji J., the learned trial Judge, by his judgment delivered on September 2, 1974, has struck down the orders of removal. The present appeal is against this judgment.

In Jyoli Prosad Banerjee''s case (1975) 1 C.L.J. 537 we have enunciated, inter alia, the following propositions of law:

(1) The Court can go into the factual existence of circumstances on the basis of which the Disciplinary Authority was satisfied that the inquiry should be dispensed with.

(2) The Disciplinary Authority must arrive at its decision in good faith and on consideration of relevant materials and not on the basis either of expediency or of extraneous matters.

(3) The Court will ensure the observance of the above principles and will also examine whether a reasonable man could come to the conclusion that the Disciplinary Authority had reached.

Mr. Somnath Chatterjee, Learned Counsel for the Petitioners-Respondents, has contended before us that since the duty of the Court is to consider afresh the circumstances resulting in dispensation from inquiry the material facts must be placed before the Court in the form of admissible evidence. In these cases, the local superior officers who reported the existence of circumstances must, according to Mr. Chatterjee, appear and give oral testimony on oath or must affirm affidavits according to law to establish their cases. In the instant appeal, for instance, on May 19, 1974, B.K. Banick, the Workshop Accounts Officer, Jamalpur, made a report to the Chief Accounts Officer, Eastern Railway, against Salil Kumar Bose, the Petitioner-Respondent No. 1. In this report B.K. Banick has, inter alia, stated :

His (that is, Salil Kumar Bose''s) object in not attending the official place of work is to make the illegal strike a success. Not only he is not attending the office/place of work himself, but he is also preventing the other innocent and loyal employees from attending the office/place of work for doing the normal work for the administration. He is inciting and instigating other loyal and innocent staff to join the illegal strike. He has created a reign of terror in the minds of other members of the staff and he is in a turbulent mood and no loyal and innocent member of the staff shall dare attend office/place of work for fear of their lives and/or severe bodily hurt due to the aforesaid acts of the above-named staff. There has been serious dislocation in the work of this administration because of his such activities.

In the next paragraph B.K. Banick has stated further:

Immediate action is called for against the above-named staff so that innocent and loyal members of the staff can attend office/ place of work freely without any resistance and violence from the aforesaid member of the staff and the normal working of the administration does not suffer.

This report of B.K. Banick dated May 19, 1974, was placed before Godwin Rose, Financial Adviser and Chief Accounts Officer, Eastern Railway, who was the Disciplinary Authority. Godwin Rose has recorded the reasons for dispensing with the inquiry in the matter of removal of Salil Kumar Bose from service. His reasons are as follows:

I have carefully considered the report dated 19-5-74 submitted by Shri B.K. Banick, Workshop Accounts Officer, Jamalpur, against Shri Salil Kumar Basu, clerk Grade II. The allegations made against Shri Salil Kumar Basu are that he is not attending his office to do his duties and without reasonable excuse. He is also inciting and instigating other loyal staff to join the illegal strike and preventing them from attending office by creating a reign of terror in their minds. Because of his activities there has been serious dislocation in the work of the Administration.

I am satisfied that Shri Salil Kumar Basu is absenting himself from office without any reasonable excuse and am convinced that his object in not attending office is to make the illegal Railway strike, which commenced on the 8th May, 1974, a success. I have also satisfied myself that Shri Salil Kumar Basu is inciting and instigating other loyal staff to join the illegal strike. I am further satisfied that Shri Salil Kumar Basu is creating fear in the minds of loyal staff who do not wish to join the strike.

I have considered the question of taking disciplinary action against Shri Salil Kumar Basu, but in view of his activities, no staff would be able to depose against him for establishing the charges in the Discipline and Appeal proceedings for fear of their lives and/or severe bodily hurt. Moreover, there is strong ground for apprehension that an inquiry under the D. and A. Rule would give Shri Salil Kumar Basu time and opportunity to organise further activities in support of the illegal strike leading to disruption of the normal working of the Administration. I am satisfied that under the circumstances it is not reasonably practicable to hold any Discipline and Appeal enquiry against Shri Salil Kumar Basu.

After taking into consideration the full facts of the case and after having satisfied myself that Shri Salil Kumar Basu is responsible for wilful and unlawful absence, intimidating the loyal employees and preventing them from attending their place of work, I have, therefore, decided that Shri Salil Kumar Basu should be removed from service with immediate effect under the powers vested in me under Rule 14(ii) of the Railway Servants (Discipline and Appeal) Rules, 1968. He may be served with notice accordingly.

It appears, therefore, that the Financial Adviser and Chief .Accounts Officer considered the report of B.K. Banick who was the local superior officer so far as the Petitioner-Respondent No. 1 was concerned. He has noted the activities which the said Petitioner had indulged according to Banick''s report. He has advanced two reasons for dispensing with the enquiry. His first reason is that, in view of the activities of the said Respondent no staff would be able to depose against him for establishing the charges levelled against him for fear of their lives or fear of severe bodily hurt. His second reason is that there is cause for apprehension that the enquiry proceedings would give the said Respondent time and opportunity to organise further activities in support of the illegal strike disrupting thereby the normal working of the Administration.

In our opinion, on the grounds stated by the Disciplinary Authority he was justified in not holding the enquiry. We took a similar view in the Chief Mechanical Engineer''s case Supra.

Mr. Somnath Chatterjee, in view of the judgment in the Chief Mechanical Engineer''s case, does not dispute that sufficient reasons for dispensing with the enquiry have been recorded, although he does not accept the correctness of that decision. But, he contends that the factual existence of the circumstances, relied on by the Disciplinary Authority, is contained in the report of B.K. Banick, which is not before this Court in the form of an affidavit of B.K. Banick affirmed according to law. The affidavit-in-opposition, in the instant case, is by Godwin Rose, the Financial Adviser and Chief Accounts Officer, affirmed on July 9, 1974. In para. 20 of this affidavit the deponent has said that he applied his mind to each case and came to the conclusion that it was not reasonable and practicable to hold an enquiry. In para. 21 he has said that he had before him sufficient materials on the basis of which he came to the conclusion that it was not reasonable and practicable to hold any enquiry in the facts and in the circumstances of the individual case. A copy of the report of B.K. Banick dated May 19, 1974 and a copy of reasons recorded by Godwin Rose have been annexed to this affidavit. Mr. Chatterjee has urged that in the absence of B.K. Banick''s affidavit before the Court there is no legally admissible evidence of the activities of the said Respondent in connection with the Railway strike. The Court has no means of examining for itself the circumstances which justified dispensation from enquiry. Mr. Chatterjee relies on the case Hafiz Shamsed v. Chatoo Lal Dey (1941) 46 C.W.N. 474 (476). A Division Bench of this Court was considering if a loan in question was a commercial loan. The fact that it was a commercial loan was sought to be established by the affidavit of a person who was not present at the time of the transaction and thus had no personal knowledge about the same but learnt it from somebody else. The Court declined to act upon such evidence and observed:

If the Court is to act upon the evidence given in an affidavit, it should be satisfied that the provisions of the CPC which relates to affidavits [i.e. Order 19, Rule 3(1)] are being complied with. When there is a conflict of testimony which cannot be decided with any reasonable certainty on affidavits, there should be oral evidence.... What the deponent is able to prove of his own knowledge is indicated in Section 60 of the Evidence Act. The deponent in an affidavit is not entitled to say anything that he likes.

The counsel for the Respondents has urged that in the instant case the facts appearing in the report of B.K. Banick are not within the knowledge of Godwin Rose. These facts cannot be proved except by an affidavit of B.K. Banick in accordance with the provisions of Order 19, Rule 3(1) of the Code of Civil Procedure. And in the absence of Banick''s affidavit it is not possible for the Court to consider the factual existence of circumstances on the basis whereof the Disciplinary Authority came to the conclusion that it was not reasonably practicable to hold an enquiry.

Similarly, in Subal Chandra Kundu Vs. State of West Bengal and Others, Bose J. (as he then was) has held that unless affidavits are properly verified and are in conformity with Order 19, Rule 3, they will be rejected by the Court.

Mr. Chatterjee, then, referred to Subramanium v. Public Prosecutor (1956) W.L.R. 965 (970) in which it is observed:

Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is heresay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by evidence not the truth of the statement but the fact that it was made

Mr. Chatterjee says that in this appeal he is not disputing that B.K. Banick had made a report to Godwin Rose. His contention is that the statements made in B.K. Banick''s report have not been proved.

Then again, in A.K.K. Nambiar Vs. Union of India (UOI) and Another, the Supreme Court has said that the reasons for verification of affidavits are to enable the Court to find out which facts can be said to be proved on the affidavit evidence of rival parties. Allegations may be true to the knowledge or allegations may be true to information received from persons or allegations may be based on records. The f importance of verification is to test the genuineness and authenticity of allegations and also to make the deponent responsible for allegations. In a sense verification is required to enable the Court to find out as to whether it will be safe to act on such affidavit evidence. In the absence of proper verification affidavits cannot be admitted in evidence.

Mr. Chatterjee submits that in this case the Appellants have to discharge the onus of establishing facts justifying the impracticability of an inquiry.

These points have been urged for the first time in the Court of Appeal. The learned trial Judge had no opportunity of considering them. Had they been taken in the trial Court the Appellants might have filed an affidavit of B.K. Banick verified according to law.

Leaving aside the technical objections, however, Mr. Chatterjee''s arguments on verification of affidavits cannot be disputed. The question is whether the rules of verification should be applied to the nature of application we are trying and to the facts and circumstances of the present case.

Here is an application under Article 226 of the Constitution asking for the issue of writs, inter alia, in the nature of certiorari directing the Respondents to transmit the entire records of the case including the impugned orders annexed to the petition and to certify them. A rule nisi was issued by the Court. The Court was entitled to look into those records. And in the records the report of B.K. Banick would be found which the Court can take into consideration. It is not correct, therefore, that the Court is debarred from considering the facts stated by B.K. Banick in the absence of a properly verified affidavit of the maker of the report. This is the fundamental difference between the cases which Mr. Chatterjee has cited and the present case. If the Court can peruse the records of the case including the report of B.K. Banick, there can be no substance in the contention that the Court should refuse to look at a copy of that report annexed to the affidavit-in-opposition of Godwin Rose. Had there been a challenge to the correctness of the copy we would have called for the original report. But, no such challenge has been made.

In this connection, it would be relevant to refer to some observations which the Supreme Court had made in M. Gopala Krishna Naidu Vs. State of Madhya Pradesh, . It is observed--

there are three classes of cases as laid down by the proviso to Article 311 where a departmental enquiry would not be held, viz. (a) where a person is dismissed, removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge, (b) where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied for reasons to be recorded in writing that it is not reasonably practicable to hold such an inquiry and (c) where the President or the Governor, as the case may be, is satisfied that in the interest of security of the State it is not expedient to hold such inquiry. Since there would be no inquiry in these classes of cases the authority would not have before him any explanation by the Government servant. The authority in such cases would have to consider and pass the order merely on such facts which might be placed before him by the department concerned. The order in such a case would be ex parte without the authority having the other side of the picture. In such cases the order that such authority would pass would not be a consequential order as where a departmental enquiry has been held.

This judgment of the Supreme Court lays down that in a given situation the Disciplinary Authority must rely on reports received from subordinate officers. In our case, Godwin Rose could not have knowledge of the violent activities which the Petitioners-Respondents were stated to have indulged in. It was B.K. Banick who was the immediate superior officer of the Respondent Salil Kumar Bose who could speak of his personal knowledge what the said Respondent had done. B.K. Banick''s report was considered by Godwin Rose and then he recorded his reasons in writing as to why enquiry should be dispensed with. Godwin Rose has annexed to his affidavit-in-opposition copies of the report of B.K. Banick as well as his own reasons in writing.

We can cite more than one instance to show that the Courts had acted upon reports of this nature as prima facie evidence of existence of facts and circumstances. In Rohtas Industries Vs. S.D. Agarwal and Others, their Lordships were considering the validity of an order for investigation into the affairs of a company under Sections 235 to 237 of the Companies Act, 1956. In response to the Rule issued by the Patna High Court the Secretary to the Government of India, Ministry of Finance, Department of Company Affairs and Insurance and Chairman, Company Law Board, New Delhi, filed an affidavit-in-opposition on behalf of the Respondent. The facts alleged in the affidavit were not all true to the knowledge of the deponent. There were also annexures to the affidavit in support of those statements. The Supreme Court considered the affidavit and the annexures in order to reach its conclusions. A similar situation arose in The Barium Chemicals Ltd. and Another Vs. The Company Law Board and Others, .

In a writ application, like the one before us, the Court is not trying any facts which must be established in accordance with the relevant provisions of the Evidence Act. The Court is concerned with the existence of circumstances justifying the decision of the Disciplinary Authority to dispense with an enquiry. As we have said the Court examines the entire records which are produced before it by the authorities concerned pursuant to the rule nisi for issue of a writ in the nature of certiorari. If the Court finds upon examination of the records that there was justification in not holding the enquiry, the Court will uphold the order of removal from service. We reiterate that if the Court can scrutinise the original records, the Court can also search for facts in the copies of these records provided that there is no challenge to the correctness of these copies. In view of these considerations we are unable to accept Mr. Chatterjee''s contentions that B.K. Banick should have himself affirmed an affidavit.

In support of our opinion that such proceedings stand on a different footing, we may cite the observations of Spens C.J. in AIR 1943 75 (Federal Court) . The learned Chief Justice said :

The first question which arises is whether having regard to the recital contained in these orders, which on the face of them appear to be validly made, it is permissible for the truth and accuracy of the recital to be inquired into by this Court. It was suggested that Section 59(2) of the Constitution Act made it impossible for any such inquiry to take place. In my judgment, however, Section 59(2) prohibits a duly authenticated order being called in question on one ground and one ground only, namely, that it is not an order or instrument made or executed by the Governor. It is quite a different thing to question the accuracy of a recital contained in a duly authenticated order, particularly where that recital purports to state as a fact the carrying out of what I regard as a condition necessary to the valid making of that order. In the normal case, the existence of such a recital in a duly authenticated order will, in the absence of any evidence as to its inaccuracy, be accepted by a Court as establishing that the necessary condition was fulfilled. The presence of the recital in the order will place a difficult burden on the detenu to produce admissible evidence sufficient to establish even a prima facie case that the recital is not accurate. If, however, in any case a detenu can produce admissible evidence to that effect, in my judgment, the mere existence of the recital in the order cannot prevent the Court considering such evidence and if it thinks fit, coming to a conclusion that the recital is inaccurate. If authority is required for the views stated above, it can, in my judgment, be found in the speeches of their Lordships in Liversidge v. Sir John Anderson (1942) A.C. 206 and Greene v. Secretary of State for Home Affairs (1942) A.C. 284.

In our case, there is the report of B.K. Banick alleging violent conduct of Salil Kumar Bose. There is also the order of removal of Godwin Rose incorporating the reasons why he thought that the enquiry should be dispensed with. We do not see why the reasons advanced by Godwin Rose should not be accepted by us. It is true that there is a general denial in paras. 5 and 6 of the affidavit-in-reply of Salil Kumar Bose affirmed on July 22, 1974, of the allegations made against him by B.K. Banick and Godwin Rose, but no facts have been stated to show why those allegations are incorrect. There is also no evidence to indicate that the report of B.K. Banick was manufactured or concocted. So far as the Respondent Ajit Kumar Lahiri is concerned there is no affidavit at all.

In one of the Railway cases, for instance, the employee had stated that during the period he was alleged to have taken part in violent activities he was a patient in a Railway hospital. In that case we had struck down the order of removal. In another case there was an allegation that the employee was absconding during the relevant period. We were of opinion that the Disciplinary Authority could not objectively say in the case of an absconding employee that he was indulging in violent activities or threatening others with physical injury. In the second case also we had struck down the order of removal. In the present case, nothing has been stated as to the whereabouts of the Petitioners-Respondents during the material period. There is an allegation that B.K. Banick was prejudiced against Salil Kumar Bose, but in the absence of any evidence in support thereof and of facts as to what Salil Kumar Bose was doing during the material period we cannot attach any importance to such statements.

In the result, this appeal is allowed and the judgment and order under appeal are set aside. The rule granted by the trial Court is discharged and all interim orders are vacated. There would be no order as to costs.

Salil Kumar Datta, J.

I agree.