JUDGMENT : Thakar, J. Deafness, inasmuch as they have not been heard, dumbness, inasmuch as the orders are non-speaking orders, and blindness in as much as the orders are passed Arbitrarily without complying with the relevant rules, ate the three vices attributed to the orders of dismissal passed against hundreds of Railways Servants who have invested their lives in the services of the Nation through the Railways. They complain that they have been accorded lesser consideration than is shown to a fly in a bowl of soup and have been economically beheaded with greater non chalance than is exhibited in flicking away a speck of dust from one's closet. The petitioner, Tele Communication Inspector at Bhavngar drawing about Rs. 500/- per month at the end of about 37 years service, is one of them. He was served with the impugned order dated 7th May 1974. Annexure I issued under the signature of the General Manager, Western Railway, reading as under: "You are hereby informed that in exercise of the powers vested in me under rule 14 (ii) of the Railway Servants (Discipline & Appeal) Rules, 1968, you are dismissed from service with effect from 7th May, 1974 for serious misconduct." 2. The petitioner has challenged the legality and validity of the Impugned order on various grounds. The Respondents Have Filed Their Affidavit-in-reply in his case but have not been able to file their affidavits-in-reply in the cases of other employees. That is why the petitions instituted by numerous other employees could not be heard along with this petition. The learned Counsel appearing for those petitioners, however, have intervened and supported the contentions urged on behalf of the petitioner. 3. In order to comprehend the real and true content of the submission urged on behalf of the petitioner, a rapid survey of the general scheme of the Railway Servants (Discipline and' Appeal) Rule, 1968 (thereinafter called the rules) is necessary. Part I of the rules embodies the dictionary of the various expressions occurring in the rules. 3. In order to comprehend the real and true content of the submission urged on behalf of the petitioner, a rapid survey of the general scheme of the Railway Servants (Discipline and' Appeal) Rule, 1968 (thereinafter called the rules) is necessary. Part I of the rules embodies the dictionary of the various expressions occurring in the rules. Part II deals with powers of suspension Rule 5 empowers the competent authority to place a railways servant under suspension in cases (i) where a disciplinary proceeding against him contemplated or pending; or (ii) where the competent authority is satisfied that the railway servant concerned is engaged in activities prejudicial to the interest of the security of the State ; or (iii) where a criminal offence is registered against an employee and the case against him is under investigation, inquiry or trial. Part III deals with penalties and disciplinary authorities. Rule 6 enumerates four minor and five major penalties. Rule 8 indicates the authority who can initiate disciplinary proceedings against a railway employee. And thereafter occurs Part IV which relates to "procedure for imposing penalties. Rule 9 prescribes the procedure for imposing major penalties. Sub-rule (i) of rule 9 enjoins that no order imposing any of the major penalties specified in rule 6 (which includes the penalty of dismissal) shall be made except after an inquiry, as far as may be, in the manner provided in the said rule and rule 10 or in the manner provided by the Public Servants (Inquiries) Act, 1950, where such inquiry is held under that Act. Sub-rule (2) of rule 9 provides that if there are grounds for inquiring into the truth of any imputation of misconduct or misbehaviour against a railway servant, the disciplinary authority may inquire into such imputations itself or appoint some other authority in this behalf as provided in the rules. Sub-rule (3) requires drawing up the substance of the imputations into definite and distinct articles of charge as also a statement of imputations in support of each article along with the relevant facts and a list of documents where it is proposed to hold an inquiry under rules 9 and 10. Sub-rule (3) requires drawing up the substance of the imputations into definite and distinct articles of charge as also a statement of imputations in support of each article along with the relevant facts and a list of documents where it is proposed to hold an inquiry under rules 9 and 10. Sub-rule (4) commands that a copy of the articles of the charge and the statement of imputations of misconduct and last of documents shall be served on the railway employee and be should he required to submit his written explanation of defence within 10 days. Under sub rule the (5) the railways servant is enable to take inspection and extracts within 5 days. A further time limit of 10 days is provided for taking inspection of documents other than the documents mentioned in the list drawn up by the competent authority. Sub-rule (7) requires the disciplinary authority to proceed further on receipt of the written statement of defence either by holding the inquiry himself or appointing an inquiring authority as per the rules. Clause (b) of sub-rule 7 of rule 9 authorises the disciplinary authority to proceed further even in case where no written statement is deceased. Sub-rule (9) entitles the railway servant to present his case with the assistance of any other railway servant as prodded therein at the inquiry. Sub-rule (10) provides that when the railway servant concerned has nominated any railway servant or a trade union official to assist him at the inquiry and the inspection of documents is completed, and when all these steps "preliminary to the inquiry" are completed, the inquiring authority has to fix a date, ordinarily not exceeding one month, for the holding of the inquiry. Sub-rules (11), (12), (13), (14) and (15) relate to the manner in which the inquiry is to be conducted and the evidence is to be recorded and in regard to incidental matters. Sub-rule (17) provides that in case the railway servant does not tile his written statement before the appointed date or refuses to comply with other provisions of the rule, the inquiring authority may hold the Inquiry ex parte. Sub-rule (19) enjoins the Inquring authority to prepare his report at the conclusion of the enquiry and to forward the record to the disciplinary authority Rule 10 relates to the action to be taken on the inquiry report. Sub-rule (19) enjoins the Inquring authority to prepare his report at the conclusion of the enquiry and to forward the record to the disciplinary authority Rule 10 relates to the action to be taken on the inquiry report. Sub-rule (5) thereof provides that the findings of the disciplinary authority shall be furnished to the railway servant along with the report of the inquiry. Clause (b) of rule 10(5)(1) requires the disciplinary authority to serve a notice on the railway servant concerned to show cause why penalty proposed to be imposed on him should not be inflicted. Rule 1l relates to the procedure to he followed for imposing minor penalties. And Rule 12 obliges the disciplinary authority to communicate the order pissed by the disciplinary authority, to the railway servant concerned along with a copy of the report of the inquiry, a copy of its finding, a statement of reasons, etc. Rule 13 relates to the procedure to be followed where two or more railway servants are concerned in air particular case. Rule 14 relates to special procedure to be followed in certain cases. Part V of the rules creates a right of appeal and provides for the machinery therefore. Rule 21 relates to the form and contents and submissions of appeals. Sub-rule (2) of rule 21 requires that the appeal must contain all material statements and arguments on which the appellant relies. Part VI relates to review. Rule 25 contained therein empowers the competent authority to call for the records of any inquire and to pass appropriate orders after following the procedure provided therein. 4. The impugned order, Annexure I, has been challenged by the petitioner inter alia on the following grounds : (1) That the impugned order has been passed in disregard of statutory rules framed in exercise of the powers conferred by the proviso to Article 30) of the Constitution of India by the)-resident known as the Railways Servants (Discipline and Appeal) Rules, 1968. la other words, the statutory rules in question been complied with. (2) That the impugned order is a nullity inasmuch as it is not speaking older both from the stand point of dispensing with the inquiry in the purported exercise of the owner under talc 14 (ii) as also from the stand point of the punitive older imposing penalty of dismissal. (2) That the impugned order is a nullity inasmuch as it is not speaking older both from the stand point of dispensing with the inquiry in the purported exercise of the owner under talc 14 (ii) as also from the stand point of the punitive older imposing penalty of dismissal. (3) The impugned order exhibits total non-application of mind and has been passed in violation of the principles of fair play and natural justice. 5. Now the first submission urged on behalf of the petitioner is that on a true construction of Rule 14 (it) of the Rules (in purported exercise of which the impugned older has teen passed) the disciplinary authority can only dispense with the holding of an inquiry strictly in the 'manner' provided in the rules. And it enables the disciplinary authority to hold an inquiry in such other manner as may be demanded by the situation. But it does not empower the disciplinary authority to dispense with an inquiry altogether The controversial Rule 14 in order to comprehend the thrust of the argument requires to be quoted. It reads :- "14. Special procedure in certain cases :- Notwithstanding anything contained in rules 9 to 13 - (i) Where any penalty is imposed on a railway servant on the ground of conduct which has led to his conviction on a criminal charge, or (ii) Where the disciplinary authority is satisfied, for reasons to be recorded by it in writing, that it is not reasonable practicable to hold an inquiry in the manner provided in these rules; or (iii) where the President is satisfied that in the interest of the security of the State, it is not expedient to hold an inquiry in the manner provided in these rules ; The disciplinary authority may consider the circumstances of the case and make such orders thereon at it deems fit: Provided that the Commission shall be consulted, where such consultation is necessary, before any orders are made in any case under this rule." The caption of the rule makes it abundantly clear that it envisages a "Special" procedure which makes departure from the ordinary procedure outlined in the preceding rules) which may be followed in certain specified cases. The non obstinate clan makes it clear that if special procedure as contemplated by rule 14 is to be followed, to the extent it is permissible as per the rule, the procedure enjoined by rules 9 to 13 need not be followed. In other word:, what is authorised is the following of special proved ire envision tea by rule 14 even if the procedure to the extent authorised is not in conformity with the procedure outlined in rules 9 to II to the extent that the departure is authorised. Sub-rule (2) of rule 14 enjoins that where the disciplinary authority is satisfied, for reasons to be recorded in writting it it is not reasonably practicable to hold an inquiry "in the manner" provided in rules 9 to 13, the disciplinary authority may consider the circumstances of the case and make such orders thereon as it deems fit. Now, it must be fully realised that no particular procedure is outlined in rule 14 at all. In this context, sub-rule (2) provides for dispensing with the holding of an inquiry 'in the manner provided in these rubs" and authorised the disciplinary authority to make such orders as may be warranted by the circumstances of the car. It clearly means that the order that is required to be passed is in two respects; firstly, in respect of the other manner in which the inquiry can be held without holding it in the proceeding manner stipulated in rules 9 to 13 and secondly upon holding the inquiry to pass appropriate final orders in regard to the disciplinary proceedings either exonerating the railway servant concerned of holding him guilty of fault attributed to him and imposing a penalty upon him in that behalf. A question may be posed as to what orders are contemplated by rule 14 upon the disciplinary authority coming to the conclusion that it is not reasonably practicable to hold an inquiry in the manner prescribed by rules 9 to 13 of the rules? And the only reasonable answer that this question evokes is that the disciplinary authority has to pass appropriate orders in regard to the other manner in which the enquiry should be held having regard to the fact that it cannot be held in the prescribed manner in strict compliance with rules 9 to 13 having regard to the impracticability of holding the inquiry in that manner. Since rule 14 relates to 'special' procedure which the disciplinary authority may follow, the disciplinary authority has to decide as to what manner of inquiry is feasible in the circumstances of the case and to proceed to hold it in the manner considered feasible by him. Thereafter, the disciplinary authority would be faced with the question as regards the guilt or otherwise of the railway servant concerned and as regards imposing penalty on him. By no amount of straining and stretching can one take the view, that sub-rule (2) of rule 14 authorises the disciplinary authority to altogether dispense with an inquiry and to pass such orders as it deems fit. To take such a view would be to taken absolutely unjust and unreasonable view not warranted by rule 14. 'surely a railway servant cannot be dismissed from service merely because which imputations are made against him ? . the very jurisdiction of the disciplinary authority to dismiss a railway servant concerned is guilty of a fault which would constitute misconduct in the service jurisprudence. The condition precedent to the exercise of jurisdiction to dismiss a railway servant concerned is guilty of a fault of the aforesaid nature which can be styled as a misconduct. He does not have the jurisdiction and the condition precedent would not exist if the disciplinary authority is merely possessed of imputations against the railway servant and nothing more. No railway servant can be dismissed merely because some imputations are made against him. He can only be dismissed if he is held guilty of a fault which would constitute misconduct in relation to master-servant relationship. It must be realised that it is essential for the disciplinary authority to convince himself not only that there are imputation against the servant concerned but also that there is truth in the imputations. It is obvious that the disciplinary authority cannot convince himself that the railway servant concerned is guilty of misconduct unless he has material in his possession which he can examine and he has also the explanation of the other side in regard to the imputations and the materials. It is only then that the disciplinary authority can convince himself that the railway servant concerned is guilty of a fault which would constitute misconduct. Till the other side of the picture-the version of the railway servant concerned, his explanation of circumstances appearing against him, etc. It is only then that the disciplinary authority can convince himself that the railway servant concerned is guilty of a fault which would constitute misconduct. Till the other side of the picture-the version of the railway servant concerned, his explanation of circumstances appearing against him, etc. is present on the mental screen of the disciplinary authority, it would be impassible to convince himself that the railway servant concerned is guilty of that fault. If this aspect is sufficiently realised there would remain no scope or room for doubt that the rule making authority had purposefully and with deliberation moulded sub-rule (2) of rule 14 of the rules in that particular fashion. What the rule making authority has done is to authorise the disciplinary authority to foil such special procedure as may be considered feasible having regard, the circumstances of the case in the event of his coming to the conclusion that it is not reasonably practicable to hold an inquiry in the manner prescribed by rules 9 to 13 of the rules. What else could be the purpose in introducing the expression "to hold an inquiry in the manner provided in these rules What is authorised is the holding of an inquiry in a different manner having regard to the exigencies or circumstances of the case. What is not authorised is the dispensing with the inquiry altogether. If the intention of the rule making authority was to dispense with the inquiry altogether what was there to prevent it from saying so in clear terms. The rule would have then been provided differently framed. It would have been provided in that event that, in case it is not practicable to hold an inquiry the disciplinary authority may dispense with the inquiry or that the disciplinary authority will not be obliged to under take an inquiry. It would have been then provided for imposing of the punishment without holding an inquiry straightaway, in case the holding of a prescribed mode of making an inquiry and authorises the disciplinary inquiry was not practicable. However, the rule does not say so. The rule merely conceives of a situation where the disciplinary authority may not consider it reasonably practicable to hold an inquiry and provides for a solution in that behalf. However, the rule does not say so. The rule merely conceives of a situation where the disciplinary authority may not consider it reasonably practicable to hold an inquiry and provides for a solution in that behalf. And the solution provided is that if it is not feasible to hold an inquiry in the prescribed manner, a special procedure as may be deemed fit by the authority concerned may be adopted by it. If such was not the intention, there was no point in referring to either the 'inquiry' or he 'manner' of holding the inquiry as prescribed by the rules. If rule 14 (ii) is read in this light, it is clear that it provides for making a departure from the authority to hold an inquiry in such manner as the special circumstances of the case may warrant and also provides that it will be competent or open to the disciplinary authority to do so notwithstanding the fact that rules 9 to 13 provide for holding of the inquiry in a different inner. Therefore, what is authorised is making a departure from rules to 13. If departure is made to that extent, the non-obstante clause would operate and the special procedure followed by the competent authority would not he invalidated on the ground that it is inconsistent with the corresponding procedure provided in rules 9 to 13 to the extent that the departure is made. The respondents have, however, construed rule 14 in altogether a different manner. It is argued on their behalf that if the disciplinary authority is of opinion that it is not reasonably practicable to hold an inquiry in the manner provided in the rules, no inquiry need he held at all. Not only this, the counsel for the respondents goes a step further and contends that it will not be at all necessary to appraise the railway servant concerned as regards the nature and contents of the imputations or as regards the materials placed before the disciplinary authority from which such imputations arise. Not rest content with this, counsel for the respondents, has gone to the length of contending that it is even not necessary to enable the railway servant concerned to barely present his case by filing his written statement of defence. Not rest content with this, counsel for the respondents, has gone to the length of contending that it is even not necessary to enable the railway servant concerned to barely present his case by filing his written statement of defence. Now, assuming that the disciplinary authority was justified in not holding an inquiry in the manner prescribed by rules 9 to 13, he was bound to hold 'some' inquiry, such skeleton one as the disciplinary authority may consider expedients having regard to the circumstances of the case. He may not be obliged to hold an elaborate inquiry or even to afford an opportunity to the railway servant concerned to adduce evidence or put forth his defence. The bare minimum that he was obliged to follow was to apprise the railway servant concerned of the imputations or fault attributed to him and to require him to submit his explanation or comments in regard to the imputations Even this much might have been considered sufficient. It, is however, impossible to hold that the disciplinary authority could have merely glanced at the imputations and without eliciting comments from the other side, by accepting the imputations at there face value as true, could have convinced himself that the railway servant concerned was guilty of the fault attributed to him. At the cost of repetition, I may emphasise what the very jurisdiction of the disciplinary authority depends on the fulfilment of the condition precedent, namely, of convincing himself that the railway servant -concerned is guilty of the fault which would constitute misconduct from the stand point of master-servant relationship. And the disciplinary authority could never have convinced himself merely because there were imputations or accusations against the railway servant concerned. He would have to examine the material and take into account the comments of the employee concerned for whatever they are worth. Subject to this, he may even have made an ex parte inquiry. He could not have old himself without eliciting the comments from the other side, that the mere existence of the imputation, was sufficient to hold him guilty of the fault. In my opinion, therefore, on a true reading of rule 14 (6) there remains no doubt that it is incumbent upon the disciplinary authority to hold some form of inquiry, be it an ex parte inquiry as he deems fit. In my opinion, therefore, on a true reading of rule 14 (6) there remains no doubt that it is incumbent upon the disciplinary authority to hold some form of inquiry, be it an ex parte inquiry as he deems fit. But he cannot dispense with an inquiry altogether and he must at least elicit the comments of the railway servant concerned before he can exercise the 'jurisdiction to impose penalty on the railway servant concerned. Counsel for the petitioner it,, therefore, right in his submission that, inasmuch as the petitioner has not even been apprised of the charges or imputations made against him and inasmuch as no comments have been sought from him about such charges, there is no compliance with rule 14 (ii) of the Rules and the consequence of non-compliance with a statutory rule would prove fatal to the impugned order. 6. The same point was argued from another platform. It was contended that even assuming that rule 14 (ii) empowers the disciplinary authority to dispense with the following of the rest of the procedure namely that of affording the petitioner an opportunity to state his case and to offer his explanation having regard to the circumstances which might have been considered against him and to show cause against the proposed penalty. Now, whatever may be the import of the expression 'inquiry' in rule 14 (iii of the rules, assuming that the disciplinary authority forms the opinion that it is necessary to dispense with the inquiry altogether, it can do so and no more. That is to say, there is no question of dispensing with compliance with any other rule excepting the rules in so far as they relate to the holding of the inquiry. And the inquiry concludes with the finding of guilt or otherwise. An examination of the rules will show that what is meant by 'inquiry' is the examination of witnesses and the hearing of arguments in defence. The very word 'inquiry' cannot as an investigation or search for truth. In the context of the rules 'inquiry' means an inquiry proper at which witnesses are examined and defence is presented Assuming that it is not practicable to hold this formal 'inquiry' and that it can be altogether dispensed with, the disciplinary authority is bound to comply with the requirements of other rules excepting the rules in regard to the holding of the inquiry proper. The non-obstante clause will save the action of the disciplinary authority to the extent that he may be authorised or empowered to dispense with the inquiry. Beyond this, the non obstante clause will not hold the disciplinary authority, for all that the rules enable him to do is to refrain from holding and inquiry where inquiry cannot be held and no more. There is nothing in rule 14 (ii) which would justify the conclusion that the rule 14 (ii) operates as is a repeal of rules 9 to 13 even as regards the matters other than the matter relating to the holding of an inquiry. The disciplinary authority can, therefore, if the interpretation canvassed by them is right (in my opinion it is not) may refrain from holding the inquiry but the disciplinary authority is hound to follow the requirements as regards affording of an opportunity to state his case and as regards the opportunity to show cause why the penalty proposed should him be imposed on the railway servant concerned. 7. The scheme of the rules clearly shows that the inquiry commences t point of time when the stage of filing of the written statement is completed. Sub-rules (7) and (9) of rule 9 clearly show that it is after the receipt of the written statement of defence that steps have to be taken in regard to the holding of an inquiry. So also clauses (b) and (c) and sub-rule (7) of rule 9 lead to the same conclusion namely that the question of holding an inquiry either ex parte or otherwise would arise only after the stage of filing of the written statement. If the charges are admitted in the written statement, the need to hold an inquiry may not arise at all. So also rule 9 (10) in terms refers to "steps preliminary to the inquiry" and provides that an inquiry may take place within one month after those steps are completed. If the charges are admitted in the written statement, the need to hold an inquiry may not arise at all. So also rule 9 (10) in terms refers to "steps preliminary to the inquiry" and provides that an inquiry may take place within one month after those steps are completed. The said rule may be quoted : "Rule 9 (10)......After the nomination of the assisting railway servant or a railway trade union official and the inspection of documents and other necessary steps preliminary to the inquiry are completed, a date ordinarily not exceeding one month shall be fired for the inquiry and the railway servant informed accordingly." It is abundantly clear that all the preceding steps outlined in rules 9 (10) to 9 (17) are the steps leading to the inquiry proper. In a way all these are steps of a Staircase which lead to what one may call the hall of inquiry. Rule 9 (1) in terms uses the expression 'preliminary' to the inquiry and the fixation of the date for inquiry at a point of time lager than the conclusion of the preliminary steps which include the filing of the written statement. Learned Counsel for the respondents was obliged to admit that so far as rule 9 (10) is concerned, the expression 'inquiry' is used in be narrower sense of inquiry proper at which witnesses are examined and defence is offered. Equipped with this master key in regard to the interpretation of the word 'inquiry' it can scarcely be contended that the rule making authority was referred to some other concept of inquiry III rule 14 (ii). If it is realised that the expression 'inquiry' has been used in this strict sense in rule 9 (7) and (10) no room for doubt remains that it is in this sense that the expression 'inquiry' has been employed in rule 14 (ii). That is to say, rule 14 (ii) at the highest may authority dispensing with an inquiry in the sense of examination of witnesses and hearing the defence. However, it dies not dispense with the requirement of rules 9 (2), (3) and 9 (4) to the extent that they oblige the disciplinary authority furnish to the railway servant concerned with a statement of relevant facts on the basis of which the imputations are made. However, it dies not dispense with the requirement of rules 9 (2), (3) and 9 (4) to the extent that they oblige the disciplinary authority furnish to the railway servant concerned with a statement of relevant facts on the basis of which the imputations are made. It also obliges the disciplinary authority to afford an opportunity to the railway servant concerned, to state his case or to explain in his written statement the circumstances appearing against him. It is therefore, clear that in so far as these requirements are not dispensed with by rule 14 (ii) there is non- compliance on the part of the respondents and impugned order deserves to be nullified and quashed. Examining the matter from the other end there is nothing in rule 14 (it) which authorises the disciplinary authority from dispensing with the requirement as regards affording of opportunity to show cause against the proposed penalty. Now, this is a very valuable right conferred by rule 10(5). A right to make a representation to the disciplinary authority that even if he is found guilty of the fault alleged against him, there are extenuating circumstances which would justify imposing of a different or lesser penalty than the penalty proposed by the authority concerned, is an invaluable right. The railway servant may be able to show that having regard to the nature of the fault, the attendant circumstances, his length of service, the nature of the service put in, the personal circumstances of the servant concerned and having regard to other penalty a lenient view deserves to be taken. This right has been conferred on the servant concerned in terms by rule 10 (5) (b) of the rules. If the disciplinary authority is of the opinion that the fault is established he has to serve the servant concerned with a notice to show cause why the tentative penalty proposed by him should not be imposed. Now, the disciplinary authority would not know all the relevant circumstances as regards the meritorious service that may have been rendered by the servant concerned in the past or as regards his family circumstances or several other extenuating circumstances or as regards the circumstances in which the servant concerned happened to commit the fault. The disciplinary authority cannot. Now, the disciplinary authority would not know all the relevant circumstances as regards the meritorious service that may have been rendered by the servant concerned in the past or as regards his family circumstances or several other extenuating circumstances or as regards the circumstances in which the servant concerned happened to commit the fault. The disciplinary authority cannot. therefore, render any decision on the question of quantum of punishment unless he avails of the opportunity of obtaining the reaction of the servant concerned. On the one hand, the railway servant concerned cannot be ribbed of his right conferred by the statutory rule; on the other hand, the disciplinary authority cannot deprive himself of the benefit of the relevant material, from the only source from which it can be gathered it mast be realised that quantum of punishment is a very delicate question which requires to be resolved by the competent authority, be it a judge presiding over a criminal court or a disciplinary authority exercising disciplinary jurisdiction. The punishment imposed must neither be too excessive nor too lenient. It must be just, proper adequate; at the same time not too harsh nor too lenient. It has either to be deterrent or reformative And in the absence of a representation of the other side, it would be impossible for the disciplinary authority to take a just decision on the question of quantum of sentence. It must be emphasised that nothing turns on the aspect that circumstances oblige the disciplinary authority to dispense with the inquiry. It cannot be contended that if no inquiry is held there is no purpose or point in extending the opportunity to show cause against the proposed penalty. The finding of guilt has nothing to do with the quantum of punishment. The quantum of punishment must depend upon the surrounding circumstances specified earlier. The right to show cause against the proposed penalty can be meaningfully availed of, even if no opportunity is afforded to the railway servant concerned to participate in the inquiry. He can show that even if he is guilty he is entitled to a more lenient treatment than proposed to be meted out to him having regard to the extenuating circumstances which are known to him alone and which he alone can place before the disciplinary authority. He can show that even if he is guilty he is entitled to a more lenient treatment than proposed to be meted out to him having regard to the extenuating circumstances which are known to him alone and which he alone can place before the disciplinary authority. There is nothing in rule 14 (ii) which would justify the conclusion that the provisions contained in rule 10 (5) stand repealed as soon as the disciplinary authority forms the opinion that is not reasonably practicable to hold an inquiry in the 'manner' prescribed by the rules. In fact, the practicability or otherwise of holding an inquiry altogether or in the manner prescribed, has nothing to do with the practicability or other wise of giving an opportunity to the railway servant concerned to show cause against the proposed penalty. There is nothing in rule, 14 (ii) which would buttress the proposition canvassed on behalf of the respondents that once the inquiry is dispensed with all the requirements contained in rules 9 to 13 would become redundant or would be capable of being disregarded. 8. It is however, argued by the learned counsel for the respondents that the decision in B.C. Das vs. State of Assam, AIR 1971 SC 2004 [1911 -(2), SLR 756) authority for the pro posit ion that no such opportunity need be given if the inquiry is dispensed with. In that case, the Supreme Court was concerned with the interpretation of Article 311(2) of the Constitution of India and the interpretation of the order of dismissal passed by the Governor of Assam. It was argued that the order passed buy the Governor of Assam only dispensed with the opportunity to show cause against the proposed penalty and that it did not, dispense with the holding of the inquiry itself On a true reading of the impugned order the Supreme Court came to the conclusion that the contention could not be accepted. It is not possible to call out from this decision the proposition that when rule 14 (ii) authorises dispensing with the inquiry or the manner in which the inquiry is to be held, it also authorises the disciplinary authority to dispense with the requirement to show cause against the proposed penalty embodied in rule 10(5) (b) of the rules. It is not possible to call out from this decision the proposition that when rule 14 (ii) authorises dispensing with the inquiry or the manner in which the inquiry is to be held, it also authorises the disciplinary authority to dispense with the requirement to show cause against the proposed penalty embodied in rule 10(5) (b) of the rules. In my opinion, therefore, the argument is sound that in any event, the respondents were obliged to afford to the petitioner an opportunity to show cause against the proposed penalty. 9. It was urged by the learned counsel for the respondent that the court should examine the content of Article 311(2) of the Constitution of India and that the right of a Government servant must be interpreted in the light of the provisions embodied in that Article which was the source of rule 14 (ii) of the Rules, in order to interpret rule 14 (ii). Now the language and setting of rule 14 (ii) is altogether different and the interpretation of that rule cannot depend on the interpretation of Article 311 (2) of the Constitution of India. In the first place, the respondents have not acted under Article 311 (2); they have acted under Rule 14 (iii). Secondly. Rule 14 (ii) must be examined and interpreted in the Setting and context in which it occurs Rule 14 (iii has been couched in a different language and fashioned in a different form. It cannot therefore be interpreted in the context of Article 311 (2) of the Constitution in disregard of the departure made in the language and in disregard of its setting, context, the background, and the scheme of the rules. In fact, to the extent that a departure has been made from the language Employed in Article 311 (2) it would be reasonable to assume that the rule Making authority had made the departure deliberately and with a purpose. It would therefore, be unrewarding to examine the content of Article 1311 (2) of the Constitution which is differently worded. Powers have been exercised in the present case under rule 14 (ii) and we are concerned with the examination of the question as regards the true import and context of Rule 14 (ii) And that is the only question to which attention must be focused. Powers have been exercised in the present case under rule 14 (ii) and we are concerned with the examination of the question as regards the true import and context of Rule 14 (ii) And that is the only question to which attention must be focused. Learned counsel for the respondents also called my attention to sub-rules (1) and (3) of rule 14 in order to contend that what was dispensed with was the entire procedure prescribed by rules 9 to 13 and not merely the manner of the inquiry or merely the requirement of holding of an inquiry. Now Sub-Rule (1) of rule 14 is not happily worded. As it is presently worded, it would appear to provide for the procedure in relation to cases where penalty is already imposed. What is presumably envisioned is a case where any penalty is proposed to be imposed on a railway servant on the ground of conduct which has led to his conviction on a criminal charge. What is of importance is to underline the expression "conduct which has led to his conviction on a criminal charge." Be it realised that a mere conviction on a criminal charge is not a ground for invoking sub-rule (1). For obvious reasons it would not be. A railway servant might be convicted of a traffic offence. Surely no Government servant can be dismissed on the ground that he was found guilty of traffic offence. The fault or the offence for the Government servant can he dismissed, must be the fault or offence which constitutes misconduct in the perspective of service jurisprudence. It must have something to do with regard to the discharge of duties and must be in connection with the master-servant relationship. What appears to have been provided is that where the "conduct" which forms the foundation of the criminal offence also is the' conduct" which constitutes misconduct in regard to master-servant relationship, a recourse to sub-rule (1) can be made. For instance, a railway servant may be found guilty of an offence of misappropriation. Such a conduct may be considered by the competent authority to be a conduit and fit for being retained in service. Or he may be found guilty of a fault which involves moral turpitude. It is when the fault itself constitutes misconduct that the railway servant can be dismissed from service. Such a conduct may be considered by the competent authority to be a conduit and fit for being retained in service. Or he may be found guilty of a fault which involves moral turpitude. It is when the fault itself constitutes misconduct that the railway servant can be dismissed from service. When a railway servant has been convicted by a criminal court in regard to such "conduct" no useful purpose would be served by holding a departmental inquiry in regard to the same matter except in regard the question of the identity of the convicted person. A judicial decision being in existence, necessary for an inquiry at the departmental level can be considered superfluous if the statement of defence does not show that the convicted person was the name sake of the railway servant against whom the disciplinary proceedings were initiated. Therefore, what rule 14(ii) contemplates is dispensing with an inquiry in such circumstances though rules 9 to 13 enjoin holding of an inquiry. That, however, has no bearing on the question as regards affording has an opportunity to file his defence and show cause against the proposed penalty Consideration enumerated a short while ago will obtain in this case also. A railway servant can possibly show that the conviction related no to him but to his name sake or that there are extenuating circumstances which would justify the awarding of lesser punishment. It will depend upon the nature and gravity of the offence. There is nothing in sub-rule (1) of rule 14 to show that it authorises the disciplinary authority to dispense with the requirements regarding affording opportunity to state his defence or to show cause against the proposed penalty. All that it authorises the officer concerned is to pass appropriate orders to the effect that having regard to the fact that there is a conviction by a criminal court, it is sufficient to obtain the comments of the servant concerned on the paint of guilt and on the point of quantum of punishment. In rule 14 (1) also the emphasis is only on the aspect of dispensation with the inquiry and not with the requirements from the stand point of other rules. So sub-rule(l) of Rule 14 in terms refers to the passing of appropriate orders in the context of an expediency to hold an inquiry against the servant concerned in the manner prescribed by the rule. So sub-rule(l) of Rule 14 in terms refers to the passing of appropriate orders in the context of an expediency to hold an inquiry against the servant concerned in the manner prescribed by the rule. Here also what is dispensed with is the strict compliance with the manner prescribed by the rules and not with the entire inquiry. And at any rate it also makes no reference to the requirement relating to affording an opportunity to show case against the penalty proposed to be inflicted. Counsel for the respondents contended that the rule was devised to deal with emergency situations where security of State might be in jeopardy. It was however overlooked that Rule 5 empowered the competent authority to forthwith suspend such an employee and remove him from his sensitive functions. Following of the requisite procedure was thus not likely to cause any inconvenience. In essence, both sub-rules (1) and (3) of rule 14 relate to either impracticability or inexpediency of holding an 'inquiry' in the prescribed manner and to opportunity to state defence or plead against proposed penalty If effect is to be given to this expression, no other conclusion is possible other than the one indicated earlier. These reasons are overwhelming and weighty and the construction canvassed by the petitioner in regard to the true content and import of Rule 14 (ii) must therefore, prevail. Had it been otherwise, and had the other view point possessed equal merit, a delicate question of choice would have raised its vacillating head. On principle, then, one would have unhesitatingly opted for the view propounded by the petitioner. Why ? Because a now egalitarian jurisprudence has been shaping itself with the march of times. Whenever a provision is capable of two interpretation, the one which promotes the cause of the workers, the cause of have not, and the cause of the exploited and the oppressed, must prevail on socio-ethical grounds. So far as the present case is concerned, as stated earlier, the construction canvassed by the petitioner has greater merit and deserves to conquer the field on its own strength and vigour. 10. Having regard to the view taken by me it is not necessary to express any final opinion on the question whether the petitioner can call into aid principal of natural justice even assuming that the interpretation canvassed by him in regard to rule 14(ii) is not acceptable. 10. Having regard to the view taken by me it is not necessary to express any final opinion on the question whether the petitioner can call into aid principal of natural justice even assuming that the interpretation canvassed by him in regard to rule 14(ii) is not acceptable. It may however be stated that neither Article 311 (2) of the Constitution of India nor Rule 14(ii) of the rules can be so construed as singing out a railway servant to deprive him of the right of being treated fairly or claiming the enforcement of principle, of fair play and natural justice in matters pertaining to termination of his service. Article 311 (2) cannot be construed as having been devised to deny to the Government servant the right to claim enforcement of principles of fair play and natural justice. All that Article 311 (2) does is to confer a statutory protection on a Government Servant. And the proviso to clause (2) withdraws the protection in certain cases. the purpose of the proviso is not to exclude a Government servant from be right to seek protection of principles of natural justice like other citizens. Its only purpose is to withdraw the Constitutional protection afforded to him. In other words, even if the procedure embodied in Article 311(2) not followed in a given case, the employee would not be protected if the proviso is attracted. The purpose of Article 311(2) read with the proviso is to extend limited constitutional guarantee to the Government servants. It cannot be construed as singling out the Government servants as a class for being denied the right to claim the enforcement of principles of natural justice and fair play, in relation to which even there citizens including those who indulge in anti-social activities, are so entitled. And so far as other citizens are concerned, it is ages too late to dispute that when the State passes administrative orders adverse to them, they are entitled to claim the protection of principles of natural justice and fair play. This position is not capable of being disputed having regard to the law laid down in A. K. Kraipak v. Union of India. A.I.R. 1910 S.C 150 ( 1969 SLR 445 ). This position is not capable of being disputed having regard to the law laid down in A. K. Kraipak v. Union of India. A.I.R. 1910 S.C 150 ( 1969 SLR 445 ). A Full Bench of this High Court, having regard to the principles laid dawn in A.K.K. kraipak's case (supra) has made the exposition of the position of law in the following words in Mamad Kala v. State (XIV G.L.R. 384: "In recent times the courts in India as well as England have adopted a bold approach and broken down the judicial administrative dichotomy in so far as the right to a fair hearing is concerned. It would therefore. seem that so far as the rule of alteram partem is concerned, there is now no recognisable distinction between quasi judicial order and administrative order." 11. Now, there can be no dispute that when a Government servant is dismissed from service, it affects his status and the disciplinary authority can punish him only provided having regard to the materials placed before it, it is convinced that the Government servant is guilty of a fault which constitutes misconduct. The function exercised by the disciplinary authority is therefore quasi-judicial in character and the principles of fair play and natural justice must be complied with. As the disciplinary authority would be obliged to weigh the pros and cons and enter upon appreciation of the material placed before it and to consider whether the materials justify the conclusion that the Government servant concerned is guilty of a fault, the functions discharged by it are quasi-judicial and the Government servant can claim the right to be treated in conformity with the principles of natural justice. Can it ever be contended that if Article 311 (2) was not there, the Government servant could have claimed the aforesaid right having regard to the quasi-judicial character of the order of dismissal passed by the disciplinary authority having regard to the principles laid down in the aforesaid two cases; but he cannot claim any such protection because Article 311 (2) has been embodied in the Constitution of India? Article 311 (2) was evidently embodied with a view to extend constitutional protection to the Government servant with an end in view to create a sense of security in the Government servant Mays be having regard to the proviso the constitutional guarantee is only a limited guarantee. Article 311 (2) was evidently embodied with a view to extend constitutional protection to the Government servant with an end in view to create a sense of security in the Government servant Mays be having regard to the proviso the constitutional guarantee is only a limited guarantee. All the same, the object of Article 311(2) is to confer either a full or a limited guarantee. It however, cannot operate as worsening the position of a Government servant as distinct from the other citizens who are entitled to the benefit of the principles enunciated in A. K. Kraipaks case. So also Rule 14 (ii) must be so construed as preserving the maximum and destroying the minimum principles of natural justice and fair play. If this approach is made, then the construction of Rule 14(ii) as observed above cannot be questioned. 12. It is next contended that the impugned order is a nullity and is liable to be quashed on the ground that it is not a speaking order. The impugned order has been quoted in extenso in the opening part of this judgment. In so far as the fault of the petitioner is concerned, it does not even ex-facie show which fault or conduct of the petitioner is styled as "serious misconduct". One who reads the order would be at a loss to know as to what fault or conduct of the petitioner was found guilty. It is something like informing an accused that he has been found guilty of an offence and sentenced to death without telling him what actually is meant by using the expression "offence" He must he told that he was found guilty of murder of a particular or at least that he was found guilty of murder. What would the order convey to the accused person if he was merely told that he was guilty of an 'offence'. It is strange that the impugned order does not even broadly indicate as to what fault was committed by the petitioner ; nor does it show ex-facie that there was any material existence on the basis of which conclusion of fault was reached. Nor does it show that a rational nexus exists between the material and the finding of guilt. The impugned order merely asservates that the competent authority was satisfied about the misconduct of the petitioner. Nor does it show that a rational nexus exists between the material and the finding of guilt. The impugned order merely asservates that the competent authority was satisfied about the misconduct of the petitioner. It does not disclose what was the fault of the petitioner or the material on the basis of which the finding is reached and whether the conclusion of guilt can be deduced by any logical process on the material on record. Now, the proposition can scarcely be disputed that when an order of dismissal is passed the disciplinary authority is discharging a quasi-judicial function. It was therefore, essential to pass a speaking order giving reasons The necessity for speaking order even on the part of the Administrative Officers exercising quasi-judicial functions has been recognised in Testeels Ltd. v. N. M. Desai XGLR 622. In the absence of reasons it would be impossible to know whether the disciplinary authority even know what it was inquiring about, or knew whether the fault if established would constitute misconduct within the meaning of service jurisprudence or that was the material relevant and whether from the material, logical conclusion of guilt could be deducted. So also a speaking order would have provided a guarantee that the disciplinary authority has not acted in an arbitrary manner. For ought we know the disciplinary authority may consider that a conviction for a traffic offence is sufficient to dismiss a Government servant. On the personal view of a Government servant or his political views might be considered as providing the foundation for holding him guilty of misconduct. That an order of dismissal must be a speaking order is a proposition which can scarcely be questioned. Even the learned counsel for the respondents has not been able to contend that the order of dismissal need not be a speaking order. Finding himself in a right corner, the learned counsel for the respondents argued, that the impugned order, Annexure 1, is not the order of dismissal. It is of course not disputed by him that Annexure l is the only order which is served on the petitioner. It is, however, argued that if it is of no consequence that no such order has been communicated to him. It is of course not disputed by him that Annexure l is the only order which is served on the petitioner. It is, however, argued that if it is of no consequence that no such order has been communicated to him. According to him, if in the confidential file of the General Manager, there exits a speaking order, it is sufficient and that it is altogether irrelevant that the said speaking order is not communicated to the petitioner. It is rather a disingenuous argument the order served on the petitioner is the order which is required is to be a speaking order. We are not concerned with the question as to whether in some secret compartment of his office the disciplinary authority has maintained a file in which he has recorded a secret speaking order. The argument of the learned counsel for the respondents that, an endorse- cant made by the General Manager below a secret note placed before him, a copy of which be has produce along with the affidavit in reply, constitutes a speaking order, cannot be accepted. What we are concerned is the order which is communicated to the petitioner. We are not concerned with any secret order which may be being with the respondents in their secret file to which the petitioner has no access. We are not concerned with any such order not communicated to the petitioner. And the only order which is communicated to the petitioner is Annexure I. Besides, on the reverse of that older there are printed instructions, clause (c) of which reads : Under Rule 18 of the Railway Servants (D & A) Rules, 1968, an appeal against these orders lies to the Railway Board provided, (i) the appeal is preferred within 45 days of the date of receipt of this notice. (ii) the appeal contains no disrespectful or improper language" (Emphasis added). 13. An intimation has been given to the petitioner that an appeal against ''these orders" lies to the Railway Board. It is therefore clear that Annexure I is the order of dismissal. There is another reason why the failure to pass a speaking order must nullify the order of dismissal. The Rules provided for an appeal against the order of dismissal. Whatever may the construction of Rule 14 (u) the right of appeal is not taken away. It is therefore clear that Annexure I is the order of dismissal. There is another reason why the failure to pass a speaking order must nullify the order of dismissal. The Rules provided for an appeal against the order of dismissal. Whatever may the construction of Rule 14 (u) the right of appeal is not taken away. The relevant provisions on this subject are contained in Part V of the rules. rule 18 provides for an appeal against the order of imposing a major penalty and rule 21 (2) provides that the memorandum of appeal shall contain "all material statements and arguments on which the appellant Now, how can the petitioner avail of the right of appeal by incorporating the material statements and arguments if he does not know for what he has been found guilty and he does not know what is the material and reasoning on the basis of which the finding of guilt is recorded? In order, therefore, to make the right of appeal effective, a speaking order must be pasted and communicated to the petitioner. If no such order is communicated to him, his right to appeal is indirectly abrogated. The right conferred by Rule 21 is a right conferred by a statutory rule framed under Article 309 of the Constitution of India. If on account of the failure to pass and communicate a speaking order to the petitioner, the petitioner is deprived of his statutory light of appeal, he can certainly complain of non-compliance with a statutory rule. on tins ground also, the impugned order must be nullified and quashed. 14. Yet another argument is advanced from the point of view of Rule 14(ii) in this context. The argument is that under rule 14(ii) disciplinary authority is bound to record in writing reasons for forming the opinion that it is not reasonably practicable to hold an inquiry in the manner prescribed by the rules and that on a true interpretation of Rule 14 (ii) such reasons must be recorded on the fact of the order of dismissal passed in pursuance thereto. Now, it would be open to the railway Servant concerned to complain to the appellate authority in the course of The appeal preferred by him that the disciplinary authority was wrong in forming the opinion that it was not reasonably practicable to hold an inquiry in the prescribed manner. Now, it would be open to the railway Servant concerned to complain to the appellate authority in the course of The appeal preferred by him that the disciplinary authority was wrong in forming the opinion that it was not reasonably practicable to hold an inquiry in the prescribed manner. He cannot avail of this opportunity of preferring an appeal unless the reasons for forming such an opinion are expressed on the face of the order of dismissal. Admittedly, the impugned order is more dump person and does not disclose the reasons for forming be opinion. It is not a speaking order from the stand point of rule 14(ii) either. The impugned order deserves to be quashed on this ground as well. 15. The petitioner and intervener wanted to urge that the decision as regards impracticability of holding an inquiry arrived at by the disciplinary authority was arbitrary and capricious and that it was not arrived at in a bona fida manner. Learned Counsel for the respondents had urged at the outset that the respondents were desirous of filing an affidavit of the General Manager to show that such circumstances existed and that he himself had formed the opinion. What has time placed on record is the affidavit sworn by the Divisional Telecommunication Engineer on October 14, 1974. He is not the officer who had formed the opinion. The opinion had been formed by the General Manager. The respondents had been granted adjournment from time to time to file their affidavits. They could have filed their affidavits on this aspect as well. But then I do not consider it proper to permit the petitioner to urge this print in the absence of the affidavit from the other side I would have granted an opportunity to the respondent to file an affidavit on this score if the aforesaid grounds were not considered sufficient to quash the impugned order and. the petitioner and others were permitted to raise this point As I am taking this view I have not permitted the petitioner and others to urge this point. This dimension of the matter is therefore kept open for being agitated in future if an occasion arises. 16. the petitioner and others were permitted to raise this point As I am taking this view I have not permitted the petitioner and others to urge this point. This dimension of the matter is therefore kept open for being agitated in future if an occasion arises. 16. I must also deal with the plea urged on behalf of the respondents and an alternative remedy is available to the petitioner by way of an appeal and that the powers under Article 225 of the Constitution of India must not therefore, be exercised. Since it is an admitted position that the only order which was communicated to the petitioner, was the non-speaking order at Annexure 1, against which no appeal could have been usefully preferred. I do not think that the existence of the alternative remedy should be considered as a road block in the way of the petitioner. Besides, the Existence of an alternative remedy, it is now well settled, is not an absolute bar to the exercise of power under Article 225 of the Constitution of India. Having regard to the facts and circumstances of the present case, I do not think teat the petitioner should be obliged to seek recourse by way of an appeal to the appellate authority. I am, therefore, unable to accede to the argument of the learned counsel for the respondents in this behalf. 17. The petitioner therefore, succeeds. Impugned order Annexure I is quashed and set abide. It is declared that the impugned order, Annexure I, is a nullity and the petitioner continues in service. 18. And now the epilogue, Tagore saw the visage of god in the workers and the toilers (not in the intellectuals). Workers constitute the real wealth of the Nation. Assuming that they have erred, even so, they deserve to be treated with compassion and understanding. The 'Simla Spirit' which was exhibited even with a neighbour who was recently at war with the Nation should prevail and not the "vescilles spirit," which resulted in disastrous consequences. It is, therefore, hoped that the establishment will react by making a constructive approach and withdraw the orders of dismissal without dragging the worker (who can ill-afford even to contest as respondents) from court to court. If they needed or deserved punishment, they have been amply punished already. It is, therefore, hoped that the establishment will react by making a constructive approach and withdraw the orders of dismissal without dragging the worker (who can ill-afford even to contest as respondents) from court to court. If they needed or deserved punishment, they have been amply punished already. It will be a gesture of good-will and enlightened self-interest to respondent to this well meant suggestion which will result in removal of bitterness, restoration of cordial relation and saving of public funds. One has to visualise the plight of hundreds of workers and their innocent family members. Should their lives and meagre resources be expended in litigations Should the time of the Administration and public funds be invested in litigation ? Just as there is a time: for war and time for peace, there is a time for Showing the mailed first and a time for text ending the hands of friendship in a 'forgive and forget, spirit, Now is the time and the opportunity for the establishment to show magnanimity as also pragmatism and to 'save the workers from further suffering, and the ultimate purpose of every just establishment is to maintain the faith and dignity of the working class which is the representative of its ethical conscience. It is hoped and expected that the spirit in which these observations are made will be correctly appreciated and the same will evoke a response which will result in a solution satisfactory to all concerned. 19. The petition is allowed. Rule is made absolute to the extent indicated earlier with costs. Petition allowed.