Judgment :- 1. This original petition has been filed under Art 226 of the Constitution of India by a Diesel Assistant in the Southern Railway, Palghat, who has been removed from service as per Ext. P2 order passed by the second respondent. A section of the locomen were on strike between 26-1-1981 and 26-2-1981. Petitioner was one of those who actively participated in the strike while one Balakrishnan was one of those who did not participate in the strike. On 26-2-1981 Balakrishnan lodged a complaint with the authorities to the effect that day the petitioner put a garland of slippers around Baiakrishnan's neck and abused him in vulgar language. A Memo of charge with the necessary particulars and documents was served on the petitioner the next day in regard to the incident on the basis that he has violated R.3(1)(ii) and (iii) of the Railway Servants' Conduct Rules. The charge was denied by the petitioner as seen from Ext. R 3 Third respondent, duly constituted enquiry authority, conducted the enquiry and submitted Ext. P1 report holding that the charge has been proved. Second respondent, the disciplinary authority accepted the finding in the report and imposed on the petitioner the punishment of removal from service under Ext. R3. It is this order, which is challenged in the present original petition. 2. The first contention urged by the learned counsel for the petitioner is that the second respondent. Senior Divisional Mechanical Engineer, Southern Railway, Palghat, who imposed the punishment is not competent to do so. An identical contention raised by another railway servant has been rejected by this court in O. P. No. 3049 of 1982. In that original petition this court held that the second respondent is competent to impose the maximum punishment on members of Class III staff to which the present petitioner also belongs. This contention is, therefore, overruled. 3. Along with the memo of charges, a list of witnesses had been served on the petitioner. The list contains only names of four persons. Besides these four witnesses, two more witnesses, Chellappan and Nallappan, who did not figure in the list of witnesses served on the petitioner, were also examined by the presenting officer. This is challenged as being violative of the provisions of the Railway Servants' Discipline and Appeal Rules. 1968 (for short the 'Rules'). 4. Besides these four witnesses, two more witnesses, Chellappan and Nallappan, who did not figure in the list of witnesses served on the petitioner, were also examined by the presenting officer. This is challenged as being violative of the provisions of the Railway Servants' Discipline and Appeal Rules. 1968 (for short the 'Rules'). 4. R.9 of the Rules deals with the procedure for imposing major penalties Clause (6) deals with the charge sheet and states that a statement of the imputations of misconduct or misbehaviour in support of each article of charge which shall contain, inter alia, a list of documents by which and a list of witnesses by whom the articles of charge are proposed to be substantiated must be drawn up. Clause (7) of R.9 states that a copy of this charge sheet along with the lists of documents and of witnesses must be served on the railway servant R.17 states that on the date fixed for enquiry the oral and documentary evidence by which the articles of charges are proposed to be proved shall be produced by or on behalf of the disciplinary authority and the witnesses will be examined by or on behalf of the presenting officer, if any, and they may be cross-examined by or on behalf of the railway servant and also re-examined by the presenting officer. R.18 of the Rules deals with new evidence and recall of witnesses It reads as follows: "18. New evidence and Recall of witnesses. If it shall appear necessary before the close of the case on behalf of the disciplinary authority, the inquiring authority may, in its discretion, allow the Presenting Officer if any, to produce evidence not included in the list given to the railway servant or may itself call for new evidence or recall and re-examine any witness and in such case the railway servant shall be entitled to have, if he demands it, a copy of the list of further evidence proposed to be produced and an adjournment of the enquiry for three clear days before the production of such new evidence, exclusive of the day of adjournment and the day to which the enquiry is adjourned. The inquiring authority shall give the railway servant an opportunity of inspecting such documents before they are taken on the record. The inquiring authority shall give the railway servant an opportunity of inspecting such documents before they are taken on the record. The inquiring authority may also allow the railway servant to produce new evidence if it is of the opinion that the production of such evidence is necessary in the interest of justice." The rule has a Note, which reads thus: "Note. New evidence shall not be permitted or called for or any witness shall not be recalled to fill up any gap in the evidence. Such evidence may be called for only when (here is an inherent lacuna or defect in the evidence which has been produced originally." 5. It is clear that normally in the enquiry only those witnesses whose names figure in the list of witnesses served on the railway servant along with the charge sheet can be examined. However, under R.18 of the Rules, the enquiry authority has discretion to allow the presenting officer to produce evidence not included in the list given to the railway servant. Enquiry authority has also power to call for new evidence or recall and re-examine any witness. Where a new witness is called to give evidence or where a witness is recalled, the railway servant shall have the right to demand a copy of the list of further evidence proposed to be adduced be given to him. He will also have the right to demand an adjournment of the enquiry for three clear days. He will have a further right of producing new evidence, if any. However, new evidence shall not be permitted to be adduced or called for to fill up any gap in the evidence. 6. This is not a case where two new witnesses have been examined to fill up gap in the evidence already adduced. These two witnesses implicated the petitioner by stating that they saw him putting garland of slippers around the neck of Balakrishnan. This incident has been spoken to by other witnesses also. Therefore, this was not a case of filling up gaps in evidence. It appears, two new witnesses figured as signatories along with Balakrishnan in the complaint submitted to the railway authorities. Evidently, it was thought that the non-examination of some of the other signatories to the complaint was a defect in the enquiry. Even in the chief examination of Balakrishnan he stated that he wanted these witnesses to be examined. It appears, two new witnesses figured as signatories along with Balakrishnan in the complaint submitted to the railway authorities. Evidently, it was thought that the non-examination of some of the other signatories to the complaint was a defect in the enquiry. Even in the chief examination of Balakrishnan he stated that he wanted these witnesses to be examined. The delinquent servant was informed about this. He, no doubt, raised an objection to their evidence being recorded; but he did not demand that he should be given a list of those two witnesses, nor did he demand an adjournment of the enquiry. I am unable to agree that the examination of these two witnesses was in any way violative of the relevant rules. 7. It is next contended by the learned counsel for the petitioner that even though second opportunity rule has been deleted from Art.311 of the Constitution of India by the Constitution (Forty Second) Amendment Act, 1976, clause (2) of Art.311 as it stands even now contemplates second opportunity being given. Clause (2) refers only to a "reasonable opportunity of being heard in respect of the charges being given to the civil servant". Use of the words "in respect of those charges", according to the learned counsel, would mean that the finding that the charges are proved on the evidence adduced in the enquiry must be put to the civil servant after furnishing him with all the necessary materials. If such an opportunity is not given, it is argued, that it cannot be said that opportunity of being heard has been given "in respect of those charges". Admittedly the second opportunity was not given to the petitioner Therefore, the learned counsel would contend that Art.311(2) of the Constitution has been violated. The learned counsel also placed reliance on the decisions reported in The Divisional Personnel Officer, Southern Railway and another v. T R Chellappan (AIR 1975 S C. 2216); in K A. Subramanian v Union of India and others (1982 Lab. I. C 1059) and in The Managing Director U. P. Warehousing Corporation and others v. Vijay Narayan Vajpayee (AIR. 1980 S C. 840). 8. In Chellappan's case as well as in Subramanian's case the disciplinary authority of the Railways dispensed with the conduct of enquiry, but imposed major penalties on the concerned railway servants. I. C 1059) and in The Managing Director U. P. Warehousing Corporation and others v. Vijay Narayan Vajpayee (AIR. 1980 S C. 840). 8. In Chellappan's case as well as in Subramanian's case the disciplinary authority of the Railways dispensed with the conduct of enquiry, but imposed major penalties on the concerned railway servants. That was evidently done under R.14 of the Rules, which states that R.9 to 13 will not apply to the cases falling within the three clauses of R.14 and that the disciplinary authority may "consider the circumstances of the case and make such orders thereon as it deems fit" This is parallel to the provision contained in the second proviso to clause (2) of Art.311 of the Constitution of India. It was held by the Supreme Court in Chelhppan's case that the word "consider" in R.14 connotes that there should be active application of the mind by the disciplinary authority after considering the entire circumstances of the case in order to decide the nature and the extent of the penalty to be imposed on the delinquent employee and this provision confers power on the disciplinary authority to decide in the facts and circumstances of the particular case, what penalty at all should be imposed on the delinquent employee. Supreme Court laid down that these provisions import the rule of natural justice enjoining that before taking action against the delinquent employee, all circumstances of the case may be objectively considered by the authority. In Subramanian's case, Chandrasekhara Menon J. followed the dictum laid down by the Supreme Court in Chellappan's case. 9. I do not think that this principle will apply to the facts of the present case Where R.14 of the Rules is applied there will be no enquiry held at all and the delinquent employee will not have an opportunity of being heard. In such circumstances, before penalty is imposed, it is necessary that be should be heard; that is to enable the disciplinary authority to consider the circumstances of the case and make such orders as it thinks fit. This opportunity is not the second opportunity but the only opportunity available to the railway servant in cases governed by R.14 of the Rules. This opportunity is not the second opportunity but the only opportunity available to the railway servant in cases governed by R.14 of the Rules. This principle cannot apply where a regular enquiry has been held in the presence of the delinquent employee and he has been given a reasonable opportunity of being heard in regard to the charges. In fact, R.10(5) of the Rules makes it clear that in cases where disciplinary authority accepts the finding of the enquiry authority and is of the opinion that major penalty should be imposed, it shall make the order imposing such penalty and it shall not be necessary to give the railway servant an opportunity to make representation, if any, against the imposition of such penalty. This is consistent with the broad scheme of the rules 10. Clause (2) of Art.311 of the Constitution of India (without the provisos) as it stood before the Constitution (Forty Second) Amendment Act, 1976 reads thus: "(2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges and where it is proposed, after such inquiry, to impose on him any such penalty until he has been given a reasonable opportunity of making representation on the penalty proposed, but only on the basis of the evidence adduced during such inquiry:" The corresponding provision amended along with the provisos incorporated by the amending Act read thus: "(2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which be has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges: Provided that where it is proposed after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed:" 11. Clause (2) of Art.311, as it stood before the amendment, contemplated enquiry in which the delinquent is informed of the charges and is given a reasonable opportunity of being heard "in respect of those charges" and also after enquiry on the penalty proposed, but only on the basis of the evidence adduced during such enquiry. The right to make a representation after the enquiry and before the imposition of the penalty has been removed by the amending Act. Apart from the deletion, a proviso is also incorporated which clearly states that no such opportunity at the stage of imposing penalty (which may be imposed on the basis of the evidence adduced during enquiry) is required to be given. There can be no doubt about the intendment behind the amendment in this regard. The clear intention is to do away with the second opportunity rule. 12. Can it be said that the words "reasonable opportunity of being heard in respect of those charges" occurring in and retained in clause (2) of Art.311 would import an opportunity being given after the enquiry is over and finding is recorded and before the imposition of penalty? According to the learned counsel for the petitioner, such an opportunity is implied in these words. A careful study of clause (2) of Art.311 would show that this contention is without merit. Clause (2) deals with punishment of dismissal or removal or reduction in rank As a condition precedent to the imposition of penalty an enquiry is required to be conducted. The clause explains the nature of the enquiry that is to be held. In the enquiry the delinquent must be informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. The giving of information regarding charges as well as the bearing in respect of the charges are part and parcel of the enquiry. Therefore, the opportunity contemplated in clause (2) can only be opportunity during enquiry and before decision is arrived at in regard to the charges. The opportunity contemplated in clause (2), as it stands now, does not extend to any stage after the completion of the enquiry Stage of imposition of punishment arises after the completion of the enquiry and the finding is recorded. To such a stage the "opportunity" mentioned in clause (2) of Art.311 as it stands now cannot be related. The opportunity contemplated in clause (2), as it stands now, does not extend to any stage after the completion of the enquiry Stage of imposition of punishment arises after the completion of the enquiry and the finding is recorded. To such a stage the "opportunity" mentioned in clause (2) of Art.311 as it stands now cannot be related. Even the words in the proviso to the effect that "such penalty may be imposed on the basis of the evidence adduced during such enquiry" cannot help the petitioner. These words will not imply a right in the delinquent employee to make a representation in regard to the evidence in the enquiry or the finding of the enquiry officer at the stage of imposition of penalty. Such an idea is totally foreign to the scheme of clause (2) of Art.311 as it stands to-day. 13. It is contended by the learned counsel for the petitioner that Ext. P2 does not give reasons for imposing punishment and since it is not a speaking order it cannot stand. There is nothing in the rules which requires the disciplinary authority to give reasons for imposition of punishment. Reasons are necessarily to be given in regard to the finding of guilt on the charges. Those reasons must find a place in the proceedings of the enquiry authority. Even the disciplinary authority is not required to give reasons when be agrees with the conclusion of the enquiry authority in regard to the findings in the report. He need give reasons only when he disagrees with the findings of the enquiry authority. Apart from this, the rules do not contemplate reasons being given at the stage of imposing punishment. There is no infirmity as alleged in Ext. P2 order. 14. The last argument urged by the learned counsel for the petitioner is that the Memo of charge refers to two separate acts of the petitioner, viz., putting garland of slippers around the neck of Balakrishnan and using vulgar language against him. The enquiry authority has found that the charge as framed to have been proved. This is accepted by the disciplinary authority also. Even the summary of evidence given in Ext. P1 report does not disclose that there was any evidence to the effect that the petitioner used vulgar language against Balakrishnan. The evidence recorded during enquiry has been placed before the court. This is accepted by the disciplinary authority also. Even the summary of evidence given in Ext. P1 report does not disclose that there was any evidence to the effect that the petitioner used vulgar language against Balakrishnan. The evidence recorded during enquiry has been placed before the court. None of the witnesses has stated that the petitioner used vulgar language against Balakrishnan or anybody else. The finding that the petitioner is guilty of having used vulgar language against anybody is not supported by any evidence at all, and therefore that finding cannot stand. The finding regarding the act of garlanding is supported by evidence of a number of witnesses and that has been accepted by the enquiry authority as well as the disciplinary authority. The petitioner cannot canvass the correctness of that finding in this proceeding under Art.226 of the Constitution of India. 15. The memo of charges alleges two acts against the petitioner. One of the acts is proved, viz., the act of garlanding with slippers. The finding of the enquiry authority regarding the other act cannot stand since it is not supported by any evidence. According to the learned counsel for the petitioner, since it is not known which of the acts weighed with the disciplinary authority in imposing the punishment, or if both of the acts weighed with him and to what extent, the disciplinary authority must be directed to consider afresh the matter of punishment. As observed in State of Orissa and others v. Bidyableshan Mohapatra (AIR. 1963 SC. 779) it is not a concern of this court in a proceeding under Art.226 of the Constitution of India to decide whether the punishment imposed is appropriate having regard to the gravity of the misdemeanour established. The reasons which induced the disciplinary authority, if there has been an enquiry consistent with the prescribed rules, are not justiciable; nor is the order of dismissal open to review by the court. If the order of dismissal may be supported on any finding as to substantial misdemeanour for which the punishment can lawfully be imposed, it is not for the court to consider whether that ground alone would have weighed with the authority in dismissing the public servant. The Court has no jurisdiction if the findings of the enquiry officer or the Tribunal prima facie make out a case of misdemeanour, to direct the authority to reconsider the punishment. The Court has no jurisdiction if the findings of the enquiry officer or the Tribunal prima facie make out a case of misdemeanour, to direct the authority to reconsider the punishment. (See also Railway Board, New Delhi and another v. Niranjan Singh (AIR. 1969 SC. 966)). Therefore, the question of directing the disciplinary authority to reconsider the matter of punishment does not arise. 16. That, however, cannot be the end of the matter. The misdemeanour committed by the petitioner was in the wake of calling of what is known as locomen's strike. Balakrishnan was one of the persons who did not join the strike: whether one calls him a loyal worker or a black-leg, one can only visualise the intense feelings which the prolonged strike by one section of the locomen and the opposition to the strike by another section would have roused among the railway employees It may be that the act of misdemeanour was committed in the heat of the moment, on account of frustration or otherwise. The strike has been withdrawn. Persons who participated in the strike and those who did not do so have once again to work shoulder to shoulder in the railways. Ensuring of a degree of cordiality and good feeling among them would be one of the tasks which the railway administration should normally address itself to. The interests of smooth and efficient functioning of the railways require that there should not be a feeling left that a person who participated in the strike has been unduly harassed or victimised on that account. Railway administration also cannot take a vindictive attitude. At the same time discipline has to be maintained and it must be shown to the guilty workers or worker that misdemeanour will not be tolerated. A measure of assurance will also be necessary to the other sections of workers. Whether all these purposes could be achieved by the imposition of extreme penalty like removal from service or whether the purposes could be achieved by imposition of lesser penalty would be a matter for the appellate authority to consider and decide. 17. The petitioner did not tile an appeal against Ext. P2 order. That was because he was challenging the competence of the disciplinary authority, a challenge which involved denial of the competence of the appellate authority also. But, there is no reason why he should not now file appeal against Ext. 17. The petitioner did not tile an appeal against Ext. P2 order. That was because he was challenging the competence of the disciplinary authority, a challenge which involved denial of the competence of the appellate authority also. But, there is no reason why he should not now file appeal against Ext. P2 in the matter of punishment. Of course an appeal filed at present would be out of time. The delay was on account of the filing of the original petition in this court. In the circumstances, that would be a sufficient ground to condone the delay. In case such an appeal is filed by the petitioner, the appellate authority would certainly be required to dispose of the appeal in accordance with law and bearing in mind the observations contained in this judgment. 18. In the result, the original petition is disposed of with a direction that in case the petitioner herein prefers an appeal before the appellate authority within two weeks from this date challenging Ext. P2 order in regard to the punishment imposed, the first respondent will ensure that the appeal is disposed of in accordance with law and in the light of the observations made in this judgment, as expeditiously as possible. In the circumstances the parties will bear their respective costs. Issue carbon copies of this judgment to the learned counsel appearing on both sides on usual terms.