ABDUL SATTAR v. UNION OF INDIA — 1983 DIGILAW 132 (KER)

Judgment :- 1. This writ petition is for the quashing of Exts. P5 and P6 proceedings. The petitioner was, as on 2-9-1974, an Acting Sub Inspector in the service of the Southern Railway at the Tambaram post, Madras. Disciplinary proceedings were initiated against him; and Ext. P1 is the enquiry report dated 7-5-1980. By the show cause notice dated 30-5-1980, a true copy of which is Ext. P2, issued by the 4th respondent, the Security Officer, Bangalore (N), Southern Railway, petitioner was asked to show cause why a penalty of compulsory retirement should not be inflicted on him. Ext. P3 dated 8-8-1981 is a medical certificate in respect of the petitioner; and Ext.P4 is a copy of the petitioner's letter dated 13-6-1980 whereby the petitioner acknowledged receipt of Ext. P2 show cause notice on 4-6-1980 and stated that he could not submit his representation within 15 days from the date of the receipt of the show cause notice and that he would send his representation on his resuming duty. The fact, however, remained that no representation was submitted by the petitioner. Ultimately after having considered Ext. P1 enquiry report, the 4th respondent passed Ext. P5 order which in its operative portion reads as follows: "The silence of the party to the show cause notice indicates his indifference and confirms the opinion tentatively arrived at by a study of the case. Therefore, I have no hesitation in confirming the proposed penalty of compulsory retirement, which i do hereby from 1-7-1980." The appeal filed by the petitioner was disposed of by the 2nd respondent, the Deputy Chief Security Officer, Southern Railway, Madras by his proceedings dated 15-4-1981, a true copy of which is Ext. P6. By Ext. P6 proceedings Ext. P5 order of compulsory retirement passed against the petitioner was confirmed. 2. As already stated the challenge in this writ petition is directed against Exts. P5 and P6 orders passed respectively by the 4th respondent and the 2nd respondent. 3. Sri. P. P. John, the counsel for the petitioner, who argued the matter at considerable length, submitted that Exts. P5 and P6 are liable to be quashed for the following reasons: (i) the 4th respondent was not competent to pass Ext. P5 and P6 orders passed respectively by the 4th respondent and the 2nd respondent. 3. Sri. P. P. John, the counsel for the petitioner, who argued the matter at considerable length, submitted that Exts. P5 and P6 are liable to be quashed for the following reasons: (i) the 4th respondent was not competent to pass Ext. P5 order, he not being the disciplinary authority having jurisdiction to pass an order compulsorily retiring an employee, in terms of R.43 and Schedule II to the Railway Protection Force R.1959; (ii) the 2nd respondent had no jurisdiction to hear the appeal or to pass an order in the nature of Ext. P6; and (iii) a copy of the report stated to have been submitted by Pw.1, the Vigilance Inspector, Railway Board, was not made available to the petitioner, thus denying the petitioner adequate opportunity to cross-examine the witness. The counsel for the Railways, on the other hand, contended that the writ petition was not maintainable as the cause of action, if any, did not arise within the territorial jurisdiction of this Court. He also submitted that the petitioner at the time of the enquiry was holding only the rank of Assistant Sub Inspector, on his having been reverted from the post of Inspector with effect from 11-4-1975 as per the relevant SRO, the entry in respect of which could be found in the service register of the petitioner; and that being the position the 4th respondent was competent to pass Ext. P5 order; and the 2nd respondent could hear the appeal and pass Ext. P6 order. It was also the stand of the respondents that the petitioner was given all reasonable facilities and opportunities to defend himself, and, therefore, there was no force in the contention that Exts. P5 and P6 proceedings were vitiated by the non-compliance with the principles of natural justice and fair play. 4. I should like to take up the question of territorial jurisdiction at the outset. In this case the event which led to Ext. P1 finding, Ext. P5 proceedings of the disciplinary authority and Ext. P6 order of the appellate authority, took place outside the jurisdiction of this Court, namely, at Tambaram near Madras. All the respondents except the 3rd respondent evidently are having their offices outside the territorial jurisdiction of this Court. In this case the event which led to Ext. P1 finding, Ext. P5 proceedings of the disciplinary authority and Ext. P6 order of the appellate authority, took place outside the jurisdiction of this Court, namely, at Tambaram near Madras. All the respondents except the 3rd respondent evidently are having their offices outside the territorial jurisdiction of this Court. The only point which was urged by the counsel for the petitioner to justify the petitioner having invoked the jurisdiction of this Court under Art.226 of the Constitution was that the 3rd respondent, the Assistant Security Officer, Southern Railway, Palghat, who conducted the enquiry was having his office at Palghat within the territorial jurisdiction of this Court. It was also submitted that some of the sittings of the enquiry was conducted by the 3rd respondent at Palghat. There is no specific pleading in the writ petition that the cause of action, or any part thereof, had arisen at Palghat, , within the jurisdiction of this Court. The counsel for the petitioner, however, relied on the following averment in Para.2 of the reply affidavit dated 23-2-1982 which reads as follows: "The contention that this Court is lacking in territorial jurisdiction to entertain the original petition is untenable. The accrual of a part of the cause of action is sufficient to invest this Court with jurisdiction to entertain the petition. The enquiry against the petitioner was conducted by the Assistant Security Officer of the Palghat Division. Ext. P1 copy of the proceedings of the enquiry will show that on 17-4-1980 the actual enquiry was held at Palghat, a place within the jurisdiction of this Hon'ble Court. I am also producing herewith a notice issued by E. J. Miller, the Assistant Security Officer to the petitioner, that the enquiry fixed on 8-11-1979 at 10 Hours will be conducted at Olavakkot, another place within the jurisdiction of this Court. The said notice is marked as Ext. P7. In fact the enquiry was held piecemeal at places both within and without the territorial jurisdiction of this Hon'ble Court. The mere fact that the enquiry was partly conducted on some days in places outside the Kerala State will not take away the jurisdiction of this Court. Even Ext. R2 is issued from Palghat by the 3rd respondent. P7. In fact the enquiry was held piecemeal at places both within and without the territorial jurisdiction of this Hon'ble Court. The mere fact that the enquiry was partly conducted on some days in places outside the Kerala State will not take away the jurisdiction of this Court. Even Ext. R2 is issued from Palghat by the 3rd respondent. The enquiry conducted by the 3rd respondent and his report is the fundamental basis for inflicting the punishment of compulsory retirement on the petitioner." The fact remains that in the writ petition the petitioner clearly stated that what led to his compulsory retirement was the finding in the enquiry part of which was held at Palghat, with respect to the incident that happened at Tambaram, Madras, when he was function ing as an Acting Sub Inspector. It is not disputed that the 3rd respondent, who was appointed to be the, enquiry officer, conducted part of the enquiry at Palghat. Reliance was placed by the counsel for the Railway on the decision of this Court in Asst. Security Officer v. Kullinga Gounder (1976 KLT. 673) and also a ruling of this Court in O. P. No. 23 of 1980. In the decision rendered by T. Chandrasekhara Menon J. in O. P. No. 23 of 1980, the question related to certain matters concerning the service of the petitioners, who, in spite of the fact that they received salary from the office at Palghat, continued to be under the administrative control of officers outside the jurisdiction of this Court, and therefore, the writ petition could not be entertained by this Court. The facts of the case in Asst. Security Officer v. Kullinga Gounder (1976 KLT. 673) (DB) also show that no cause of action, not even a part of it, arose within the jurisdiction of this Court in as much as there was no plea that the petitioners (respondents) functioned, in the discharge of their duties, within the territorial jurisdiction of this Court; and the only contention put forward was that the 1st appellant must be taken to have been functioning inside the Kerala State also, though his office was situated outside the State, as his jurisdiction extended to areas within the Kerala State. 5. These cases, in my view, stand on a different footing from the facts of the present case. 5. These cases, in my view, stand on a different footing from the facts of the present case. No doubt the 3rd respondent is not the disciplinary authority or the appellate authority; but his conduct as the enquiry officer is under attack; and the enquiry report Ext. P1 submitted by him is the basis for the order of compulsory retirement. It is not necessary that the disciplinary authority or the appellate authority should have their offices within the jurisdiction of this Court. If part of the cause of action arose within the jurisdiction of this Court, this Court would have jurisdiction to entertain the writ petition; and in my view the fact that the 3rd respondent had, during the material time, his office at Palghat, within the jurisdiction of this Court, and the enquiry in part, was held at that place, in the light of the contention that the enquiry was not held properly in accordance with the principles of natural justice, is sufficient to hold that part of the cause of action arose within the territorial jurisdiction of this Court. I am therefore of the opinion that on the facts and in the circumstances of the case, it is difficult to hold that the respondents are entitled to succeed in the contention that this Court had no jurisdiction to entertain a writ petition. 6. Now we would proceed to consider the other contentions raised in the writ petition. Firstly it was contended that the 4th respondent had no jurisdiction to pass the order in the nature of Ext. P 5. It was pointed out that on 2-9-1974 he was an acting Sub-Inspector and that in terms of R.43 of the Railway Protection Force Rules, 1959 and Schedule II thereto, it is only the Chief Security Officer who had power to impose the punishment. The fact, however, remains that the petitioner was not holding even the rank of acting Sub Inspector as he was reverted to his substantive rank of Assistant Sub Inspector as early as on 11-4-75. The counsel for the Railways argued that it is the substantive rank held by the petitioner that has, to betaken into account for the purpose of determining the jurisdiction of the authority, who could inflict the punishment on the petitioner. The counsel for the Railways argued that it is the substantive rank held by the petitioner that has, to betaken into account for the purpose of determining the jurisdiction of the authority, who could inflict the punishment on the petitioner. In this case the petitioner was not holding even the acting rank of Sub Inspector when the enquiry started; hence the 4th respondent had the jurisdiction to inflict the punishment. 7. The decision of the Supreme Court in The State of Bihar v. Shiva Bhikshuk Mishra ( (1970)2 S.C.C. 871) suggests that the officiating position also should be taken into account for the purpose of obtaining the authority competent to inflict the punishment. That was a case in which even at the time when the punishment was inflicted, the applicant was holding the officiating rank, which was conferred on him by the Deputy Inspector of Police, who was holding a higher rank than the officer who passed the order of punishment. In fact in this case it was the petitioner himself who invoked the jurisdiction of the 2nd respondent in filing the appeal before him; and it is too much for him now to contend for the position that the 2nd respondent had no jurisdiction to hear the appeal or to pass an order in the nature of Ext. P6. 8. One other point raised by the petitioner is that he was not furnished with a copy of the report stated to have been filed by the Vigilance Officer of the Railway Board. So long as that document has not been exhibited, and so long as the contents of that document have not been made use of at the enquiry, the petitioner cannot feel aggrieved by the failure on the part of the Enquiry Officer to furnish him with a copy of the alleged report of the Vigilance Officer. 9. How the principles of natural justice have been denied to the petitioner and how the enquiry was not fairly and properly conducted, have not been established by the petitioner. The petitioner did not submit a reply to the charges levelled against him. 10. It is also to be noted that the petitioner had requested to the 4th respondent that he was willing to voluntarily retire from the service. It is seen that subsequently the petitioner wrote Ext. P4 reply to the Railway that he had received the show cause notice. 10. It is also to be noted that the petitioner had requested to the 4th respondent that he was willing to voluntarily retire from the service. It is seen that subsequently the petitioner wrote Ext. P4 reply to the Railway that he had received the show cause notice. The request made by the petitioner was that the retirement pursuant to Exts. P5 and P6 was really to be treated as voluntary retirement. The counsel for the petitioner, after consulting with the petitioner, submitted that the petitioner had not so far received any amount by way of retirement benefit. The respondents will pass appropriate orders to pay the arrears of pension etc. due to the petitioner. For the foregoing reasons, the writ petition fails and is dismissed, however in the circumstances of the case without any order as to costs. Dismissed.