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1981 DIGILAW 97 (PAT)

Virendra Prasad Misra v. Union Of India

1981-05-05

S.SARWAR ALI, SHIVANUGRAH NARAIN

body1981
Judgment S. Sarwar Ali, J. 1. In this writ application the petitioner prays for quashing of annexures 1 and 2. Annexure 1 is the memorandum dated 17th January, 1930/28th January, 1980, stating that respondent no.3 has provisionally come to the conclusion that the petitioner was not a fit person to be retained in service and requiring him to show cause as to why the penalty of removal from service should not be imposed. Annexure 2 (which is annexed to the supplementary affidavit) is the order of removal of the petitioner from service and is dated 25th March, 1980. It may be stated that this order was passed after the filing of the writ application and has been challenged by filing a supplementary affidavit. 2. The relevant facts giving rise to this writ application may be briefly stated. According to the case of the respondents, the petitioner, while working as T. T. E. of 525 Up train on 16th November, 1979 at 4.45 p. m. failed to maintain absolute integrity and devotion to duty and indulged in acts which have been mentioned in the statement of allegations contained in Annexure 1 to the writ application. As already stated Annexure 1 is the notice directing the petitioner to show cause as to why the penalty of removal from service should not be imposed. In that annexure the statement of allegations against the petitioner was also annexed. The said memorandum stated that the proposed punishment of removal from service was being taken in exercise of powers conferred by Rule 14 (ii) of the Railway Servants (Discipline and Appeals) Rules, 1968. The petitioner showed cause but his show cause was not accepted and the order of removal from service was passed on 25th March, 1980, by respondent no.3. 3. It is not in dispute that regular enquiry as envisaged in the Railway servants (Discipline and Appeals) Rules (hereinafter referred to as the Rules)was not held as the contemplated action was being taken under Rule 14 (ii) of the Rules. 3. It is not in dispute that regular enquiry as envisaged in the Railway servants (Discipline and Appeals) Rules (hereinafter referred to as the Rules)was not held as the contemplated action was being taken under Rule 14 (ii) of the Rules. Rule 14 (ii) is as follows : - "notwithstanding anything contained in Rules 9 to 13 - (ii) where the disciplinary authority is satisfied for reasons to be recorded by it in writing, that it is not reasonably practicable to hold an enquiry in the manner provided in these rules ; or the disciplinary authority may consider the circumstances of the case and make such orders thereon as 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" It is thus clear that in order to attract the provision aforesaid, the disciplinary authority must be satisfied that it is not reasonably practicable to hold an enquiry in the manner provided in Rules 9 to 13. The reasons for not holding an enquiry should also be recorded in writing. The rule envisages the satisfaction of the disciplinary authority, and as such, the court would not be entitled to substitute its own judgment in order to ascertain whether or not it was reasonably practicable to hold an enquiry. But where the disciplinary authority has proceeded on irrelevant considerations or has failed to take relevant considerations into account or has come to a decision which a reasonable person could not arrive at, the decision of the disciplinary authority to resort to the special provision as contained in Rule 14 (ii) of the rules would be open to challenge. It would, therefore, be necessary to examine whether viewed within the narrow compass of permissible judicial review, there is any infirmity in the order of the disciplinary authority. 4 Although annexure 1 does not say in so many words that the reasons are as indicated in the statement of allegations for not holding the enquiry, yet reading the memorandum (annexure 1) as a whole, it can be held that what has been stated in the statement of allegations amounts to the the reasons on the basis of which the disciplinary authority has come to the conclusion that it was not reasonably practicable to hold the enquiry. This is also clear from annexure 2 wherein it has been stated that for the reasons which have been recorded in writing, it is not reasonably practicable to hold an enquiry in the manner provided under the rules. Four allegations have been mentioned in annexure 1 which may constitute the reason for not holding the enquiry. 5. The first allegation is that the petitioner used physical violence which indicates about the potentials of dangers that any Investigating Inspector would run, if normal course of investigation is taken. " Physical violence is alleged to have been resorted to by the petitioner on 16th November, 1979, which is really the subject-matter of misconduct and lack of devotion to duty on the part of the petitioner. It is pertinent, however, to observe that it is only the "potentials of dangers" which is mentioned in this allegation. There is no averment either in the statement of allegations or in the counter-affidavit which has been filed on behalf of the respondents, to the effect that after the alleged incident any violence was resorted to by the petitioner so far as the officers of the Department are concerned. Thus, it is only the possibility of future physical violence which is mentioned in this allegation. The mere possibility of use of violence on the part of a person who is proceeded against cannot lead to the conclusion that it was not reasonably practicable to hold an enquiry. Had it been otherwise, it would mean that in any case where violence is the subject-matter of charge, no enquiry can be held because of the remote possibility (not probability) of use of violence in future. The first statement of allegation, therefore, in my view, cannot reasonably lead to the conclusion that an enquiry was not practicable. 6. The second allegation states that the petitioner assaulted one of the investigating Inspectors and also used filthy language so far as the Investigating inspector and others are concerned. From this it is inferred that the petitioner could easily terrorise any independent witness who made be called by the administration in the enquiry. Here also the ground appears to be too far-fetched. It is not stated or asserted that the petitioner had held out any threat to any person who was a witness or was going to be cited as a witness in the enquiry. Here also the ground appears to be too far-fetched. It is not stated or asserted that the petitioner had held out any threat to any person who was a witness or was going to be cited as a witness in the enquiry. The second ground also cannot, therefore, be a reasonable basis for holding that an enquiry was not practicable. 7. The fourth allegation mentions about the manhandling and abuse of the Inspectors and the lodging of an F. I. R. against all of them under various sections of the Indian Penal Code and the Indian Railways Act. From these it is inferred that all the Inspectors have been terrorised and no further investigation seems feasible. In fact there is no material to show that the Inspectors have really been terrorised because of the lodging of the f. I. R. or the manhandling and abuse which had taken place earlier and which was the subject-matter of the charge. If some act posterior to the main charge which the petitioner had to face, had a proper enquiry been held, had taken place, it might have been possible to infer that regular enquiry may not be practicable. Such is not the position here. 8. These were the three allegations on which emphasis was laid by learned counsel for the respondents in support of the legality and validity of the action taken by the authorities concerned. 9. It would, however, be pertinent to notice the third allegation as well. It states that the petitioner caught hold of a passanger witness and took his statement forcibly which was contrary to the statement made by him earlier. It is further said that the petitioner wanted to create false evidence in his favour. So far as the allegation of fabricating evidence is concerned, it does not have relevance so far as the practicability of holding an enquiry is concerned. In so far as the allegation of a passenger being forced to give his statement is concerned, it has some relevancy but it only shows that undue pressure had been put on one person only. In so far as the allegation of a passenger being forced to give his statement is concerned, it has some relevancy but it only shows that undue pressure had been put on one person only. If a series of such acts were there it might have been possible to say that an enquiry was not feasible or practicable, but only one incident of coercion could not by itself load to the conclusion that an enquiry as envisaged in the Rules was not practicable, where a number of witnesses including officers of the Department could have been competent witnesses in the enquiry. Moreover, where several grounds have been stated for the satisfaction of the authority concerned and some of them are irrelevant or do not have rationally probative, value, it cannot be said that because only one ground is good the whole order is sustainable. I am, therefore, of the view that, for the reason indicated, annexure 1, and annexure 2 which is the order of removal, are unsustainable and have to be quashed. 10. Learned counsel for the respondents contended that an appeal lay to the proper authority under Rule 18 and that the said fact had been mentioned in annexure 2 itself. This writ application was filed before the final order was passed. Moreover, when there is clear infirmity in the order under challenge, the petitioner should not be denied relief because an alternative remedy was available after the filing of the writ application. 11. In the result, this application is allowed and annexures 1 and 2 are quashed. But it is made clear that the authorities will be entitled to proceed further in the matter in accordance with law. In the circumstances, there will be no order as to costs. Petition allowed.