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1979 DIGILAW 11 (CAL)

In re. M. A. Mathei v. .

1979-01-15

R.N.PYNE

body1979
ORDER The petitioner in this application, who is a Railway servant i.e. Health Inspector, Pathandih, challenges the order of the Disciplinary Authority dated 27.10.78 removing him from his service with immediate effect. According to the petitioner the said order was served on him on 15.11.78. 2. As the facts of this case are not in dispute, only a brief reference thereto may be made. 3. The petitioner was charged with an offence under S. 161 of the Indian Penal Code and S.5(l)(d) read with S.5(2) of the Prevention of Corruption Act. 1975 on the allegation that be took Rs. 40/- as bribe or illegal gratification from two sweepers of the Eastern Railway working under him. Thereafter, by the order dated 20th November 1975 issued by the Disciplinary Authority i.e., the respondent no. 3 the petitioner was suspended from service with effect 1.11.75. In the criminal case instituted against the petitioner by the judgment and order dated 20th July, 1978 the learned Judge, Special Court, Howrah found the petitioner guilty of the charges and convicted him under S. 161 of the Indian Penal Code and S.5(2) of the Prevention of Corruption Act, 1947 and sentenced the petitioner to rigorous imprisonment for two years and a fine of Rs. 500/-. Against the said order of conviction and sentence the petitioner preferred an appeal to this Court on 1.8.1978 and by order dated 18.1976 this Court stayed the realisation of fine and the petitioner was allowed to remain on bail. It is stated by the petitioner that by his letter dated 3.8.78 through proper channel he informed the respondent No. 2 the Divisional Superintendent, Eastern Railway, Dhanbad about the said order dated 1.8.1978, and enclosed therewith a certified copy of the Advocate's letter testifying to the aforesaid fact and prayed for sympathetic consideration of his case. Thereafter, by an office order dated October 27, 1978 passed by the respondent No.3 the petitioner was removed from his service and a copy of the said order was handed over to the petitioner by the Welfare Inspector, Dhanbad on November 15, 1978. 4. Being aggrieved by the said order the petitioner after demanding justice by his Advocate's letter dated November 11, 1978 made the present application under Article 226 of the Constitution challenging the validity of the said order of removal dated October 27, 1978. 5. Mr. 4. Being aggrieved by the said order the petitioner after demanding justice by his Advocate's letter dated November 11, 1978 made the present application under Article 226 of the Constitution challenging the validity of the said order of removal dated October 27, 1978. 5. Mr. Partha Sarathi Bose, learned Advocate appearing on behalf of the petitioner has submitted that the Disciplinary Authority at the time of passing of the impugned order did not consider the pending Criminal Appeal and the order passed therein on 1.8.1978. According to Mr. Bose this affects the impugned order in two ways. First, in view of the order dated 1.8.1978 in the Criminal Appeal trial court's order could not be said to be final and therefore, it was not open to the respondents to take any proceedings under Rule 14(i) of the Railway Servants (Discipline and Appeal) Rules, 1968 (hereinafter referred to as 'the said Rules'), on the basis of the petitioner's conviction on a criminal charge and secondly, the said fact should have been taken into account by the Disciplinary Authority before a warding the said punishment to the petitioner. Mr. Bose has further submitted that before passing of the order the Disciplinary Authority ought to have consulted the Public Service Commission in terms of the proviso to the Rule 14. It is an admitted fact that no such consultation was made by the Disciplinary Authority. Lastly, Mr. Bose has submitted that before passing of the final order of punishment no opportunity was given to the petitioner to make representation before the Disciplinary Authority regarding appropriate nature of the punishment and, that being so, the order of removal from, service in any event, is bad in law. In support of his above submissions Mr. Bose has relied very strongly on a decision of the Supreme Court in the case of Divisional Personnel Officer v. T.R. Challappan AIR 1975 SC 2216 and in particular paragraph 21 of the said judgment as also an unreported decision of G K Ray, J, dt. 29.5.1978 in C. R. No. 2850(W) of 1974 (Haralal Mistrl v. Deputy Divisional Superintendent & Ors.). 6. Mr. Smriti Kumar Ray Chowdhury, learned Advocate appearing on behalf of respondents bas drawn my attention to a Railway Board's Circular dated 4.3.76 a copy of which has been annexed to the affidavit-in-opposition filed in the instant case. 29.5.1978 in C. R. No. 2850(W) of 1974 (Haralal Mistrl v. Deputy Divisional Superintendent & Ors.). 6. Mr. Smriti Kumar Ray Chowdhury, learned Advocate appearing on behalf of respondents bas drawn my attention to a Railway Board's Circular dated 4.3.76 a copy of which has been annexed to the affidavit-in-opposition filed in the instant case. Relevant portion of the said Circular is as follows :- "In modification of the instructions contained in Ministry of Railway (Rly. Board)'s letter No. E(D & A) 66-RG-6-58 dated 19.1.1967 on the subject mentioned above. it is hereby clarified that the disciplinary authority may, if it comes to the conclusion that an order, with a view to imposing a penalty on railway servant on the ground of conduct which bas led to his conviction on a criminal charges, should be issued issue such an order without waiting for the period of filing an appeal or, if an appeal has been filed without waiting for decision in the first court of appeal. Before such an order is passed, the Union Public Service Commission should be consulted where such consultation is necessary." 7. On the basis of the said Circular Mr. Roy Chowdhury bas submitted that the pendency of the appeal did not debar the Disciplinary Authority from taking action under Rule 14(1) of the said Rules. Mr. Roy Chowdhury bas also submitted that a recent decision of the Division Bench of this Court in the case of Union of India v. P.C. Chowdhury 1976 Labour and Industrial Cases 1362 : 1976 CHN 689 has explained the decision of Supreme Court mentioned above and particularly the observation of Supreme Court in paragraph 21 of the said judgment upon which reliance has been placed by Mr. Hose. Mr. Roy Chowdhury has submitted that according to the ruling of the Division Bench it is not an universal Rule that in all cases a hearing is to be given to a delinquent employee before passing of the order of punishment. Mr. Hose. Mr. Roy Chowdhury has submitted that according to the ruling of the Division Bench it is not an universal Rule that in all cases a hearing is to be given to a delinquent employee before passing of the order of punishment. Mr. Roy Chowdhury has drawn my attention to paragraph 8 of the judgment of the Division Bench which is extracted below: "While authority will consider the circumstances and bear the delinquent in appropriate cases the decision does not lay down that as an universal rule in all cases the delinquent employee has to be given a hearing even if he is convicted by criminal court of the offence of serious moral turpitude." 8. Relying on the aforesaid observation of the Division Bench Mr. Roy Chowdhury has submitted that this is a case where before passing the order of punishment the Disciplinary Authority fully considered the circumstances and according to him in the facts and circumstances of the case it was not necessary for the Disciplinary Authority to give any bearing to the delinquent. According to Mr. Roy Chowdhury in view of the decision of the Supreme Court as explained by the said Division Bench judgment all the necessary requirements have been complied with by the Disciplinary Authority in the instant case. 9. Mr. Bose has however submitted that the said ruling of the Division Bench is not applicable to this case because in the instant case action was taken under Rule.14(1) whereas the Division Bench considered a case under clauses (ii) and (iii) of Rule 14 of the said Rules. He has further submitted that G.N. Ray J. in C.R. No. 2850 (W) of 1974 has considered both the decisions of the Supreme Court and of the Division Bench and the observation of His Lordship in that case supports the petitioner's contention. 10. As, in my view, the instant case can be disposed of on a short point mentioned hereafter it is not necessary for me to embark upon an elaborate discussion on all the points argued at the Bar or to express any view as to what extent the said decision of the Supreme courts has been distinguished by the Division Bench in P.C. Chowdhury's case. 11. 11. The Division Bench in paragraph 8 of its judgment in P.C. Chowdhury's case has observed as follows:- "The above decision does not, in our opinion, lay down a broad proposition that in all cases of conviction on a criminal charge, the disciplinary authority is required to hear the delinquent before passing the orders, of removal from service. As has been laid down the authority which is required to consider the circumstances of the case and make such orders as it deems fit, has to embark upon a summary inquiry and take into consideration all relevant circumstances and it is not obligatory for the authority to remove a delinquent employee from service as soon as there is a conviction on a criminal charge. * * * * It is undoubtedly true that the disciplinary authority is required to consider the circumstances, and if there is no consideration of the circumstances attending or if there is non-application of mind by the authority or the order is otherwise perverse or biased or mala fide or based on extraneous matters or on misconception of the situation or law any final order passed may be challengeable in a court of law for scrutiny." 12. In this case even on the basis of the aforesaid decision of the Division Bench on which strong reliance was placed by Mr. Roy Chowdhury I am unable to accept his submissions. According to the said Bench decision before passing an order of penalty under Rule 14 it is incumbent upon the Disciplinary Authority to consider the attending circumstances and comply with the requirements mentioned above. In this case no material has been disclosed by the respondents to establish that all the relevant facts and circumstances were considered by the Disciplinary Authority before passing the impugned order. The impugned order is significantly silent about the fact that against the order of conviction an appeal was admitted by the Division Bench of this court and further, by the order dated August 1, 1978 the accused in the said criminal case i.e. the petitioner, was allowed to remain on bail and the order of fine was stayed. The impugned order is significantly silent about the fact that against the order of conviction an appeal was admitted by the Division Bench of this court and further, by the order dated August 1, 1978 the accused in the said criminal case i.e. the petitioner, was allowed to remain on bail and the order of fine was stayed. In the affidavit-in-opposition, which has been affirmed by one Nazir Ahmed the Assistant Personnel Officer, Eastern Railway, Disciplinary and not by the Disciplinary Authority, there is no whisper regarding the fact that the Disciplinary Authority before passing the impugned order of punishment had considered all the relevant facts and the attending circumstances of this case and in particular the said pending criminal appeal and the said order dated August 1, 1978 and that upon consideration of all those facts according to the Disciplinary Authority the punishment of removal from service of the petitioner was the appropriate penalty. Apart from the question whether the petitioner should have been given a hearing before passing of the order of punishment about which I am not expressing any opinion in this case, the fact of non-consideration of all the relevant facts and the attending circumstances, in my view, vitiates the impugned order and makes it invalid. As the Disciplinary Authority in 'passing the impugned order has not complied with the provisions of Rule 14 as interpreted by the Supreme Court and the Division Bench of this Court mentioned above the said order cannot be upheld. 13. As this, application is disposed of only on one point as mentioned above I shall not be taken as expressing any view on the other points raised in this application. 14. For all reasons stated above, in my view, this application should succeed and the impugned order should be quashed. Therefore, the impugned order dated October 10, 1978 being annexure 'B' to the petition is quashed. Rule Nisi is made absolute. There will however be no order as to cost. 15. The Disciplinary Authority, however, be at liberty to take appropriate disciplinary proceedings against the petitioner in accordance with law and before passing the order of penalty will give the petitioner an opportunity of being heard in respect of the pending criminal case. Rule made absolute.