Union of India v. Tara Chand — 1975 DIGILAW 17 (RAJ)

LODHA, J.—The facts giving rise to this second appeal by the defendant Union of India are these— The respondent-plaintiff was appointed as a Khalasi on 29 May, 1947 in Loco Workshop, Western Railways, Ajmer and was confirmed as such in 1963. He was drawing Rs. 85/- per month as pay and Rs, 47/- per month as Dearness Allowance and also Rs. 7.50 as house rent. He alleged that he had been falsely implicated in a case under secs. 324 and 323/341 read with sec. 34 I.P.C. The court of Additional Munsiff Magistrate first class, Ajmer (East) tried the case and convicted him under sec. 324 read with sec. 34 I.P.C. and sentenced him to pay a fine of Rs. 250/-. It is admitted case of the parties that on the basis of the said conviction he was removed from service on 3 March, 1966 (Exhibit A/6). This order was served upon him on 4 March, 1966 (Exhibit A/1). The respondent challenged the validity of this order on several grounds one of which was that without considering the conduct of the respondent and the circumstances leading to his conviction the punishing authority pressed into service special procedure provided in R. 1719(i) of Discipline and Appeal Rules for Railway Servants other than those employed in the Railway Protection Force contained in Indian Railway Establishment Code Volume I (which for the sake of brevity will hereinafter be called the Rules) and removed him from service. He prayed for declaration that the order of his removal was illegal and invalid. Prayer for a decree for arrears of salary was also made. 2. The defendant-appellant traversed all the grounds relied upon by the respondent in support of his plea of invalidity of the impugned order of removal and pleaded, inter alia, that from the facts and circumstances of the case it was clearly borne out that the punishing authority had taken into consideration the conduct of the respondent which had led to his conviction on a criminal charge and, therefore, R. 17l9(i) of the Rule has been rightly applied to the respondent by the punishing authority. 3. Both the lower courts have decided this point in the plaintiffs favour and since I, too, have felt that the matter can be disposed of on this point alone I do not think it necessary to make reference to other grounds relied upon by the plaintiff. 3. Both the lower courts have decided this point in the plaintiffs favour and since I, too, have felt that the matter can be disposed of on this point alone I do not think it necessary to make reference to other grounds relied upon by the plaintiff. R. 1719 reads as under— "1719 Special procedure in certain coses Notwithstanding anything contained in sec. 5 or sec. 6— (i) where a 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 in writing that it is not reasonably practical to follow the procedure prescribed in the said rules; or (iii) where the president is satisfied that in the interest of the security of the State, it is not expedient to follow such procedure, the Disciplinary Authority may consider the circumstances of the case and pass such orders thereon as it deems fit. Provided that the Union Public Service Commission shall be consulted before passing such orders in any case in which such consultation is necessary." 4. Section V and Section VI referred to in the opening sentence of this Rule prescribes the procedure to be followed in cases of imposition of major and minor penalties respectively. It is further clear that if R. 1719 is pressed into service in a particular case the procedure prescribed under the aforesaid sections need not be followed. In the present case it was admittedly not followed. The only question, therefore, which calls for determination is whether condition No. (i) prescribed under R. 1719 was fulfilled in the present case. 5. The learned District Judge has held that there is nothing on the record to show that the penalty was imposed on the respondent on the ground of conduct which has led to his conviction nor there is anything to show that the Disciplinary Authority had considered the circumstances of the case. 6. The impugned order of punishment may be divided into two parts. The first part is office note which has been submitted for orders and the latter part is the order by the Authority which is a short one and can be conveniently reproduced here. "Shri Phoolchand and Tarachand have been convicted by the Court, but they have suppressed this information from this office. The first part is office note which has been submitted for orders and the latter part is the order by the Authority which is a short one and can be conveniently reproduced here. "Shri Phoolchand and Tarachand have been convicted by the Court, but they have suppressed this information from this office. Since they have both been convicted, they are removed from service. D E. E. (W) may be informed regarding the action taken by us against Phoolchand and Tarachand. Sd/- S.C. Bansal W.M.(L) 3-3-66." 7. There is no denying the fact that there is nothing in the order to indicate that the penalty had been imposed on the ground of conduct of the respondent which led to his conviction or that the Disciplinary Authority had taken into consideration the circumstances of the case. 8. Learned counsel for the appellant, however, submitted that the impugned order has been passed on the basis of the office note preceding it and the office note does lead to an inference that the conduct of the appellant leading to his conviction had been taken into consideration and so also the circumstances of the case. His contention is that the punishing authority must be deemed to have adopted the reasoning contained in the office note. 9. Granting for arguments sake that the office note may be considered as a part of the order itself or as the basis of the impugned order, the question still remains whether there is anything in the office note to show that the conduct of the appellant leading to his conviction and the circumstances of the case had been taken into consideration. 10. I have carefully gone through the office note and find that there is absolutely no reference in it to the conduct of the appellant or the circumstances leading to the respondents conviction. The first para of the office note merely says that Duli Chand, the complainant, in the criminal rase had produced a copy of the judgment of the criminal court by which the respondent had been convicted, The next paragraph deals with definitions of sec. 324 and 34 I.P.C and then there is reference to the Boards directive as to when a Railway employee should be dismissed and when suspended. Further there is reference to R. 1707-IX of the Rules. 324 and 34 I.P.C and then there is reference to the Boards directive as to when a Railway employee should be dismissed and when suspended. Further there is reference to R. 1707-IX of the Rules. Lastly; it is mentioned that the record was being submitted to W.M. (L), Ajmer for inflicting penalty of removal or dismissal on both the employees of the department. 11. Learned counsel for the appellant placed strong reliance on Director of Postal Services and another vs. Daya Nand(l) in support of his argument that because a copy of the judgment had been attached to the papers, it must be inferred that the punishing authority had taken into consideration the ground of conduct of the respondent leading to his conviction and the circumstances of the case. It has been held in this ruling that the conduct and the conviction are inseparable and that to say that the accused was convicted of a specified offence necessarily means that the accused committed the act or was guilty of the conduct constituting the said offence. It was further observed that any canduct which has led to conviction is sufficient to enable the punishing authority to dismiss the convicted employee. However, on going through the facts of the case contained in the said ruling, I find that the serious nature of the offences leading to the conviction and the extenuating circumstances were both recited in the punishing order and, therefore, an inference was drawn that the punishment of dismissal was imposed after due application of its mind by the punishing authority. In the present case, as I have stated above, neither the facts leading to the offence nor extenuating circumstances, if any, are recited in the punishing order. The case is, therefore, distinguishable on facts. But with utmost respect I wish to submit that it would not be correct to say that the conduct and the conviction are inseparable nor it would be safe to lay down the proposition that conduct of a person is conclusively bad because of his conviction. It is true that the punishing authority may not recite the words "on the ground of conduct which has led to conviction" in its order. It is true that the punishing authority may not recite the words "on the ground of conduct which has led to conviction" in its order. Nevertheless the contents of the order must lead to an inference that the authority had applied its mind to the conduct of the person leading to his conviction and had also taken the circumstances of the case into consideration while imposing the penalty. The relevant provision namely R. 1719(i) is in the same terms as Art. 311(2) proviso (a), under which the application of clause 2 may be dispensed with. It is absolutely necessary that the conditions contained in proviso (a) should be fully satisfied before a citizen is deprived of a regular enquiry into the charges levelled against him. Reading the impugned order of punishment as a whole, I have come to the conclusion that the punishing authority did not take into consideration the conduct of the respondent leading to his conviction on a criminal charge nor the circumstances of the case, and therefore, its order is liable to be struck down. 12. Faced with this position, learned counsel for the appellant relied on Exhibit A/1 wherein it has been mentioned that the conduct of the respondent has been taken into consideration. It is sufficient to point out that this notice Exhibit-A/1 which was served upon the appellant was only a compliance of the punishing authority order and it is signed by one Shri Khosla, for W.M. (L). It is not an order of the punishing authority. Consequently any improvement made by Shri Khosla who had no authority to impose punishment on the respondent cannot make up the deficiency in the punishing authoritys order. Shri Khosla, it is conceded, was not the competent authority to impose punishment in the present case. He had only issued notice to the respondent in compliance of the punishing authoritys order. 13. The only other alternative submission made by the learned counsel for the appellant is that the courts below have committed a grave error of law in awarding full salary and other emoluments to the respondent. In this connection he has invited my attention to sub-rule 4 of R. 1706 of the Rules, which reads as under— 1706 (1) ... ... ... (2) ... ... ... (3) ... ... ... (4) ... In this connection he has invited my attention to sub-rule 4 of R. 1706 of the Rules, which reads as under— 1706 (1) ... ... ... (2) ... ... ... (3) ... ... ... (4) ... compulsory retirement from seivice imposed upon a railway servant is set aside or declared or rendered void in consequence of or by a decision of a court of law and the disciplinary authority, on a consideration of the circumstances of the case, decides to hold a further inquiry against him on the allegation on which the penalty of dismissal, removal or compulsory retirement was originally imposed the railway servant shall be deemed to have been placed under Where a penalty of dismissal, removal or suspension by the competent authority, mentioned in R. 1705 from the date of the original order of dismissal, removal or compulsory retirement and shall continue to remain under suspension until further orders. (5) ... ... ..." 14. At this stage I may also refer to the operative part of the trial courts judgment wherein it has been mentioned that "it shall be open to the Disciplinary Authority W.M. (L) Ajmer to consider the plaintiffs conduct which led to his conviction and the circumstances of the case afresh and to pass necessary orders as provided in R. 1719 of the Rules". This judgment was affirmed by the learned District Judge, Ajmer. Apart from that sub-Rule 4 ( reproduced above ) authorises the Disciplinary Authority to hold a further inquiry against the delinquent employee on the consideration of the circumstances of the case. It is further clear from sub-R. 4 that where such a course is adopted, the railway servant shall be deemed to have been placed under suspension by the competent authority from the date of the original order of dismissal and shall continue to remain under suspension until further orders. Learned counsel submits that in face of the aforesaid provision money decree for full salary for the period from the date of dismissal upto the date of the suit should not have been allowed. This is correct. 15. In the circumstances of the case the proper course would be to set aside the impugned order of punishment and to leave the matter of salary open. This is correct. 15. In the circumstances of the case the proper course would be to set aside the impugned order of punishment and to leave the matter of salary open. If the Disciplinary Authority decides to proceed against the respondent under R. 1706 (4), the respondent may be paid his salary in accordance with the said rule. If not, the salary may be paid as permissible under the Rules. No decree for any definite sum can be passed at this stage. 16. Accordingly, I allow this appeal in part and modify the judgment and decree by the learned District Judge in the terms mentioned above. The respondent will get half the costs throughout.