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2002 DIGILAW 173 (CAL)

Union of India v. Surya Mani Sharma

2002-03-13

Ashok Kumar Mathur, Girish Chandra Gupta

body2002
JUDGMENT Girish Chandra Gupta, J. The common question in all the three appeals is whether the dispensation of enquiry and dismissal from services without holding an enquiry was proper. The learned trial Judge has held against the employer. Accordingly, the employer- Union of India has come up in appeal. The order of dismissal reads as follows:- "Whereas Sri S.M. Sharma of HSME out post joined his hands in the commission of a daring crime of 2556 pcs. of G.P. Sheets from Wagon No. W.R. 27004 Ex. SCOB to Gaziabad and PE 22771 Ex. SCOB to Okhala on the night of 7-10-1980 at Hirapur Exchange Yard which were very tactfully despatched by GA-1 up on 7-10-1980 at 8-30 hrs. after commission of the crime with seals skilfully manipulated and, Whereas the said Sri S.M. Sharma instead of performing his legitimate duties entrusted upon him, with obvious reasons aided, abetted 'and connived with the notorious gang leaders and their associates in the commission of the said crime which yielded a shortage valued at Rs. 25,05,061/approximately thereby completely betraying the Railway Administration for sheer monetary gains, and Whereas the said Sri S.M. Sharma has been indulging in undesirable activities, intimidating the local inhabitants public residing in the elaka and making all possible wreckless efforts to spoil evidence in close association with the veteran criminals involved in this crime and his activities are considered prejudicial to the interest of the Railway Administration and against public interest and, Whereas in the interest of the Railway as also of the general public retention of Shri S.M. Sharma in Railway service any further is considered undesirable and, Whereas the undersigned is fully satisfied that the circumstances of the case are such that it is not reasonably practicable to hold an enquiry in the manner provided for the members of the Force under RPF Rules 44/45 & 46 of the R.P.F. Rules, 1959. Now, therefore, consider that the said Sri S.M. Sharma is not a fit person to be retained in service the undersigned, in exercise of the powers conferred on him under Rule 47 of the R.P.F. Rules, 1959 hereby removes the said Sri S.M. Sharma from service w.e.f. 06.02.1981. Sd./- S. Tanwar Security Officer". 2. Now, therefore, consider that the said Sri S.M. Sharma is not a fit person to be retained in service the undersigned, in exercise of the powers conferred on him under Rule 47 of the R.P.F. Rules, 1959 hereby removes the said Sri S.M. Sharma from service w.e.f. 06.02.1981. Sd./- S. Tanwar Security Officer". 2. The learned trial Judge following an earlier order of another Single Judge on an identical case allowed the writ petition and passed the following order:- "Under identical circumstances other orders were passed against the other petitioners and one of them come up before this Court in Civil Rule 1053(W) of 1981. In the said matter Ajit Kumar Sengupta, J. passed an order dated 1-6-1990 setting aside the order which is identical in nature of the order passed in the present application and His Lordship further directed that the petitioner would be reinstated forthwith and the period of suspension shall be treated as the period spent on duty for the entire period and that he shall be entitled to all service benefits excepting this that the petitioner in that case shall only be entitled to the monetary benefits to the extent of 50% of the arrear salaries which would have been payable to him had he continued in service. His Lordship further directed the respondents therein to pay all the arrears to the petitioner within eight weeks from the date of communication of this order. Let a copy of the said judgment be kept with the records of this case. This application is also disposed of by passing the following orders. The order impugned in this application passed on February 5, 1981 is hereby set aside. The petitioner shall be reinstated in service forthwith and he shall be allowed to resume his duty on production of a xerox copy of the operative part of this judgment. The entire period from the date of his suspension to the date of his resumption of his duty shall be treated as the period spent on duty. The petitioner shall be entitled to all service benefits including the annual increments and promotions, if any, during the period of suspension but the monetary equivalent of the notional benefits shall be limited to the extent of 50% of such benefit. All arrears shall be paid to the petitioner within eight weeks from the date of communication of this order." 3. All arrears shall be paid to the petitioner within eight weeks from the date of communication of this order." 3. Rule 47 of the R.P.F. Rules, 1959 provides as follows:- "47. Special procedure in certain cases.- Notwithstanding anything contained in Rules 44,45 and 46 where a penalty is imposed on a member of the Force(a) on the ground of conduct which had led to his conviction on a criminal character or (b) where the disciplinary authority is satisfied, for reasons to be recorded in writing that it is not reasonably practicable to follow the procedure prescribed in the said Rules, the disciplinary authority may consider the circumstances of the case and pass, such orders thereon as it deem fit." 4. Reference in this connection may also be made to Article 311 of the Constitution which provides as follows:- "311. Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State.-(1) No person who is a member of a civil service of the Union or an all-India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed. (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: 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: Provided further that this clause shall not apply- (a) where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; (b) where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry; (c) where the President or the Governor, as the case may be, is satisfied that in the interest of the security of the State it is not expedient to hold such inquiry. (3) If, in respect of any such person as aforesaid, a question whether it is reasonably practicable to hold such inquiry as is referred to in clause (2), the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank shall be final." 5. Articles 311(2) and 311(3) of the Constitution came up for consideration before the Apex Court in the case of Union of India vs. Tulsi Ram Patel, reported in AIR 1985 SC 1416 . In paragraph 137 Their Lordships after considering the law on the subject came to the following conclusion: "Where a Government servant is dismissed, removed or reduced in rank by applying clause(b) or an analogous provision of the service rules and he approaches either the High Court under Article 226 or this Court under Article 32, the court will interfere on grounds well established in law for the exercise of power of judicial review in matters where administrative discretion is exercised. It will consider whether clause(b) or an analogous provision in the service rules was properly applied or not. It will consider whether clause(b) or an analogous provision in the service rules was properly applied or not. The finality given by clause(3) of Article 311 to the disciplinary authority's decision that it was not reasonably practicable to hold the inquiry is not binding upon the court. The Court will also examine the charge of mala fides, if any, made in the writ petition. In examining the relevancy of the reasons, the court will consider the situation which according to the disciplinary authority made it come to the conclusion that it was not reasonably practicable to hold the inquiry. If the court finds that the reasons are irrelevant, then the recording of its satisfaction by the disciplinary authority would be an abuse of power conferred upon it by clause (b) and would take the case out of the purview of that clause and the impugned order of penalty would stand invalidated. In considering the relevancy of the reasons given by the disciplinary authority the court will not, however, sit in judgment over them like a court of first appeal. In order to decide whether the reasons are germane to clause(b), the court must put itself in the place of the disciplinary authority and consider what in the then prevailing situation a reasonable man acting in a reasonable way would have done. The matter will have to be judged in the light of the then prevailing situation and not as if question whether the inquiry should be dispensed with or not in the cool and detached atmosphere of a courtroom, removed in time from the situation in question. Where two views are possible, the court will decline to interfere." 6. The reasons assigned by the authority in the present case for dismissing the employee under Rule 47, for convenience, are once again quoted here-in-below:- "Whereas the said Sri S.M. Sharma has been indulging in undesirable activities, intimidating the local inhabitants, public residing in the elaka and making all possible wreckless efforts to spoil evidences in close association with the veteran criminals involved in this crime." 7. Now placing ourselves in the position of the disciplinary authority we cannot but hold that in a case like this it was only reasonable for the disciplinary authority to hold that" it is not reasonably and practicably to hold an enquiry." The reasons assigned by the disciplinary authority are not at all irrelevant. 8. Now placing ourselves in the position of the disciplinary authority we cannot but hold that in a case like this it was only reasonable for the disciplinary authority to hold that" it is not reasonably and practicably to hold an enquiry." The reasons assigned by the disciplinary authority are not at all irrelevant. 8. One more reason to uphold the action of the disciplinary authority is the absence of any charge of mala fide against the disciplinary authority. It is no doubt true that mala fide has in fact been suggested in paragraphs 47 and 52 of the writ petition but such allegations are shorn of any particulars and details in the absence whereof, in our view, such allegations do not even amount to an allegation of mala fide. For convenience, paragraphs 47 and 52 of the writ petition are set out here-in-below: "47. Your petitioner states that the respondents herein acted mala fide, illegally, arbitrary and without any sense of responsibility in purporting to issue the purported order of termination dated 5-2-1981 on extraneous consideration and/or for a collateral purpose. 52. Your petitioner states that mala fide is the foundation of the purported order of removal of the petitioner dated 5-2-1981." 9. The aforesaid allegation do hardly justify even a suspicion in the mind of Court about the bona fide of the disciplinary authority. Reference in this connection may also be made to the case of State of M.P. vs. Nandalal Jaiswal, reported in (1986) 4 SCC 566 , wherein Their Lordships stated the law in this regard as follows:- "................... It is true that in the writ petitions the petitioner used words such as 'mala fide', 'corruption' and 'corrupt practice' but the use of such words is not enough. What is necessary is to give full particulars of such allegations and to set out the material facts specifying the particular person against whom such allegations are made so that he may have an opportunity of controverting such allegations. The requirement of law is not satisfied insofar as the pleadings in the present case are concerned and in the absence of necessary particulars and material facts, we fail to see how the learned Judge could come to a finding that the State Government was guilty of factual mala fides, corruption and underhand dealing." 10. The requirement of law is not satisfied insofar as the pleadings in the present case are concerned and in the absence of necessary particulars and material facts, we fail to see how the learned Judge could come to a finding that the State Government was guilty of factual mala fides, corruption and underhand dealing." 10. Where power has been exercised by the disciplinary authority for appropriate reasons as in this case the decision of the authority is final. Reference in this connection may be made to the case of Chandigarh Administration vs. Ex. S.I. Gurdit Singh, reported in (1997) 10 SCC 430 . 11. Another significant fact which has been totally overlooked by the learned trial Judge is that rule was issued on 17-2-1981. For non-supply of correct address and non-deposit of postal costs the rule as against O.P. Nos. 3 and 5 being the appellants No.3 and 5 was discharged on 3-7-1987. The rule was discharged against the rest of the appellants by an order dated 29-10-1987. It appears that the rule was restored by an order dated 7-10-1988 without any notice to the appellants and the matter was disposed of ex parte by the impugned order. 12. For the reasons aforesaid we are satisfied that the impugned order cannot be sustained and the same is set aside. Accordingly, the appeal is allowed and the writ petition is dismissed. The respondent is directed to restore to the appellant all benefits received under orders of Court within 3 months from the date of communication of this order. There will be no order as to costs. Ashok Kumar Mathur, C.J.: I agree. Later: Stay of operation of this judgment, as prayed for, is considered and the same is rejected.