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1967 DIGILAW 392 (SC)

Union of India v. J. A. Munaff

1967-12-06

G.K.MITTER, R.S.BACHAWAT

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JUDGMENT Mitter, J.- l. This is an appeal from a judgment and order of the High Court of Madhya Pradesh allowing a petition under Art.226 of the Constitution and thereby quashing an order passed by the General Manager. South Eastern Railway, in May 1963 dismissing the respondent from service. 2. The facts shortly are as follows. The respondent started his career in the railway as an employee in the Bengal Nagpur Railway in the year 1929 and was confirmed in 1930. In January 1962, he was working as a confirmed Loco Foreman at Shahdol in the scale of pay Rs. 575-650 with effect from Mach 16, 1961. On January 12, 1962, he was served with a charge sheet over the signature of the District Mechanical Engineer, Bilaspur alleging "Serious misconduct and/or neglect of duty" rendering him liable to dismissal from service in terms of paragraph 1707 of the Railway Establishment Code. In substance the charge was that he had marked certain khalasis working in the Loco Shed as present on duty during a certain period when actually they were prosecuting their studies at a school and were present there. The enquiry was conducted by a Board of Enquiry consisting of the Assistant Mechanical Engineer and the Assistant Personnel Officer .On receipt of the report submitted by the Board of Enquiry the General Manager issued a notice to the respondent to show cause why he should not be dismissed from service. His explanation did not convince the General Manager who passed an order of dismissal on May 8, 1963. The respondent filed an appeal to the Railway Board which was, however, turned down. He filed his petition under Art. 226 before the Madhya Pradesh High Court in September, 1965. Therein he took many points including one that the "disciplinary authority" in relation to him was the General Manager and he alone was competent to issue a charge sheet as required by Rule 1709 of the Railway Establishment Code read with Rule 1702 (i) and (ii) of the Discipline and Appeal Rules. His complaint was that the charge sheet having been issued by the District Mechanical Engineer who was neither the "appointing authority" nor the "Disciplinary authority" within the meaning of the rules, was illegal and void and no steps taken against him on the basis of such charge sheet could justify any action against him not to speak one of dismissal. His complaint was that the charge sheet having been issued by the District Mechanical Engineer who was neither the "appointing authority" nor the "Disciplinary authority" within the meaning of the rules, was illegal and void and no steps taken against him on the basis of such charge sheet could justify any action against him not to speak one of dismissal. In paragraph 10 of his petition, the respondent had stated inter alia that "the General Manager who is the Disciplinary authority did not afford him "my opportunity of hearing." 3. The affidavit in opposition was affirmed by one Hem Narain Singh, Assistant Mechanical Engineer, South Eastern Railway. According to this affidavit "the enquiry ordered by the Chief Mechanical Engineer was quite in conformity with the rules and the officers nominated to conduct the enquiry were competent to hold the same." It was also said in paragraph 5 of that affidavit that the Chief Mechanical Engineer was the competent authority to order a departmental enquiry into the charges to be held by the Assistant Mechanical Engineer and Assistant Personnel Officer. 4. The High Court of Madhya Pradesh did not examine all the grounds sought to be raised by the respondent in his petition but on the view that the applicant had been appointed as a Loco Foreman by the General Manager concluded that he was also the "Disciplinary Authority" in relation to the respondent under paragraph 1702 (II) of the Conduct and Discipline Rules. The High Court allowed the application following its decision in Shardul Singh Vs. State of M. P. 1967 JLJ 21 = 1966 MPLJ 145 = AIR 1966 MP 193 that "a departmental enquiry initiated by an authority other than the disciplinary authority has no power to frame on its own initiative charges against an employee" and the notice to show cause issued by the disciplinary authority as a result of such enquiry and the order of dismissal passed by it subsequently were null and void. 5. It was argued before us that the High Court had gone wrong in its interpretation of the relevant rules of the Discipline and Appeal Rules for Railway Servants which were in force at the relevant time. These rules are contained in Chapter XVII which includes rules from 1702 to 1738. Sub-r. (i) r. 1702 defines the "Appointing Authority". 5. It was argued before us that the High Court had gone wrong in its interpretation of the relevant rules of the Discipline and Appeal Rules for Railway Servants which were in force at the relevant time. These rules are contained in Chapter XVII which includes rules from 1702 to 1738. Sub-r. (i) r. 1702 defines the "Appointing Authority". There is no dispute in this case that the "Appointing Authority" was the General Manager although counsel for the respondent made a faint suggestion to the contrary by saying that the respondent had been appointed originally by the Bengal Nagpur Railway, a company which is no longer functioning. Under sub-r. (ii) of r. 1702. "Disciplinary Authority in relation to the imposition of a penalty on a Railway servant means the authority competent to impose on him that penalty, provided that for imposing penalties of compulsory retirement, removal or dismissal that authority shall be the' Appointing Authority' and in relation to the issue of charge sheets etc., under Rules 1709 to 1712 and 1716 means authority competent to impose any of the penalties specified in Rule 1707". 6. Under rule 1705 the authorities who are competent to place a Railway servant under suspension and to impose penalties on him are specified in Schedules I, II and III appended to the rules. Rule 1707 specifies the penalties which may for good and sufficient reason and as provided be imposed on a Railway servant. They are inter alia (i) censure (ii) withholding of increments or promotions (iii) recovery from pay of the whole or part of any pecuniary loss caused to the Government by negligence or breach of orders; (iv) reduction to a lower service grade or post or to a lower time scale or to a lower stage in a time scale, (v) compulsory retirement (vi) removal from service which shall not be a disqualification for future employment and (vii) dismissal from service. Rule 1708 provides that "without prejudice to the provisions of the Public Servants Inquiry Act 1850. Rule 1708 provides that "without prejudice to the provisions of the Public Servants Inquiry Act 1850. no order imposing on a Railway servant any of the penalties specified in clauses (iv) to (vii) of sub rule (1) of rule 1707 shall be passed except after an inquiry held as far as may be in the manner provided in rules 1709 to 1715." Under Rule 1709 the Disciplinary Authority must frame definite charges on the basis of the allegations on which the inquiry is proposed to be held. Such charges together with a statement of the allegations on which they are based shall be communicated in writing to the Railway servant and he shall be required to submit within such time as may be specified by the Disciplinary Authority (a) to such authority or (b) where the Board of Enquiry or Inquiring Officer has been appointed to that Board or officer a written statement of his defence and also to state whether he desires to be beard in person. Under rule 1710 the Disciplinary Authority may enquire into the charges itself or if it considers necessary it may either at the time of communicating the charges to the railway servant under r. 1709 or at any time thereafter appoint a Board of Inquiry or an Inquiring Officer for the purpose which will be termed as the 'Inquiring Authority'. Rule 1711 contains provision for inspection of official records. Rule 1712 lays down the inquiry procedure. Under rule 1713 the Disciplinary Authority shall if it is not the Inquiring Authority consider the record of the inquiry and record its findings on each charge. Rule 1714 empowers the Disciplinary Authority to pass appropriate orders if having regard to its findings it is of the opinion that any of the penalties specified in clauses (i) to (iii) of sub-rule (1) or in clauses (i) and (ii) of sub-rule (2) of rule 1707 should be imposed. Rule 1714 empowers the Disciplinary Authority to pass appropriate orders if having regard to its findings it is of the opinion that any of the penalties specified in clauses (i) to (iii) of sub-rule (1) or in clauses (i) and (ii) of sub-rule (2) of rule 1707 should be imposed. Under rule 1715 if the Disciplinary Authority having regard to its findings on the charges is of the opinion that any of the penalties specified in clauses (iv) to (vii) of sub-rule (1) of rule 1707 should be imposed it shall furnish to the railway servant a copy of the report of the Inquiring Officer and after following the rather elaborate procedure laid down in this rule determine what penalty if any, would be imposed on the railway servant and pass appropriate orders on the case. 7. Our attention was drawn to Schedule II mentioned in Rule 1705 which is Headed "Schedule of Disciplinary Powers of different grades or Railway Officers". Under column 7 of the Schedule we find that with regard to officers of Class IV, Artisans and Class II staff the disciplinary powers are to be exercised by the Head of the Department. The contention of the appellant was that the Disciplinary Authority to issue charge sheets and taking steps under r. 1709 to r. 1712 and r. 1716 was the Head of the Department in terms of r. 1702 to r. 1712 and r. 1716 was the Head of the Department in terms of r. 1702 (ii) read with r. 1705 and Schedule II thereto. It was next argued that for the purpose of issuing charge sheet to the respondent the Chief Mechanical Engineer, i.e., the Head of Department in terms of Schedule II envisaged by r. 1705 was the Disciplinary Authority although for purposes of imposition of penalties like compulsory retirement, removal or dismissal the Disciplinary Authority would be the appointing authority namely the General Manager. 8. From the record of the case before us it is not possible to say who was the Head of the Department in relation to the respondent, i.e. whether it was the Chief Mechanical Engineer or the District Mechanical Engineer. The Affidavit in opposition is to the effect that the enquiry was ordered by the Chief Mechanical Engineer to be held by the Assistant Mechanical Engineer and the Assistant Personnel Officer. The Affidavit in opposition is to the effect that the enquiry was ordered by the Chief Mechanical Engineer to be held by the Assistant Mechanical Engineer and the Assistant Personnel Officer. According to the judgment of the High Court the inquiry was initiated by the Chief Mechanical Engineer. Further there is nothing to show clearly that the respondent belonged to Class IV or was an artisan of Class III staff for the purpose of Schedule II. 9. The High Court went by its own decision in Shardul Singh's Case (supra). We are expressing no opinion about the correctness of the judgment in Shardul Singh's case but it appears to us that the decision In that case cannot govern the case of the respondent. Shardul Singh was a Sub-Inspector of Police dismissed by an order of the Inspector General of Police. The departmental enquiry was initiated and held by a Superintendent of Police and the charges were also framed by him. After the conclusion of the enquiry the Superintendent of Police sent his report finding Shardul Singh guilty of the charges raised to the Deputy Inspector General of Police. The latter officer in his turn submitted the report to the Inspector General of Police Thereupon the last mentioned officer issued a notice to Shardul Singh asking him to show cause why he should not be dismissed from service and after considering the reply of Shardul Singh passed the impugned order dismissing him from service. One of the points there taken was that the departmental enquiry held by the Superintendent of Police on charges framed by himself was a nullity as the Superintendent of Police was not the disciplinary authority in regard to Shardul Singh and had no power to initiate any such enquiry. The High Court found that Shardul Singh had been appointed as a Sub-Inspector by the Inspector General of Police of the former Rewa State and that being so the Inspector General of Police Madhya Pradesh was competent to dismiss him from service. The High Court found that Shardul Singh had been appointed as a Sub-Inspector by the Inspector General of Police of the former Rewa State and that being so the Inspector General of Police Madhya Pradesh was competent to dismiss him from service. The point raised by the State of Madhya Pradesh was that under regulation 228 of the Police Regulations framed under section 7 of the Police Act 1881 the Superintendent of Police had the power to initiate a departmental enquiry against a Sub-Inspector on a charge framed by him and that in any event, the framing of a charge and the holding of an enquiry were administrative acts which could be delegated by the Inspector General of Police to a subordinate authority. The High Court found itself unable to accept this argument on the reasoning that if the power of appointment could not be delegated the concomitant power of the appointing authority to dismiss the employee or to take disciplinary action against him could not also be delegated, further the framing of charges the holding of an enquiry into them the suspension of the civil servant during the enquiry and the notice to show cause were all steps in the exercise of the disciplinary power and must be taken by the disciplinary authority itself and not by its delegate. According to the High Court:- "In. the absence therefore of a statutory provision permitting expressly or impliedly the delegation of disciplinary powers the disciplinary authority If it decides that disciplinary action should be taken against a civil servant must itself frame the charges and hold an enquiry into them or direct another authority to hold an enquiry into those charges". 10. The situation here seems to be different. The expression "Disciplinary Authority" has a two fold meaning. For the purpose of imposing penalties of compulsory retirement, removal or dismissal it can only be the appointing authority whereas in relation to the issue of charge-sheets etc. under rules 1709 to 1712 and 1716 it can be any authority competent to impose any of the penalties specified in Rule 1707. Rule 1707 as already noted enumerates the various penalties which can be imposed on a railway servant including those n1entioned above. under rules 1709 to 1712 and 1716 it can be any authority competent to impose any of the penalties specified in Rule 1707. Rule 1707 as already noted enumerates the various penalties which can be imposed on a railway servant including those n1entioned above. Rule 1705 read with Schedule II (for the purpose of this case) shows that the Head of the Department is competent to impose some of the penalties on Class IV artisans and Class II staff. If therefore, the charge sheet issued to the respondent in this case was in conformity with Rule 1705 read with Schedule II there was nothing irregular in the enquiry and it was open to the appointing authority namely the General Manager to impose on the respondent the penalty of dismissal from service. In the absence of all the available material we find ourselves unable to accept the judgment of the High Court in this case. We therefore set aside the judgment appealed from and remand the matter to the High Court for consideration of the point canvassed before us afresh if necessary by giving the parties opportunity of adducing evidence by affidavit as to whether the respondent belonged to Class IV or Class III staff or was an artisan and whether the charge sheet was issued by the Head of the Department to which the respondent belongs. 11. The High Court will be at liberty to examine the above along with all the other points canvassed by the respondent and come to its finding thereon. The costs incurred so far will abide the result of the decision of the High Court.