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2010 DIGILAW 1492 (PNJ)

Union Of India v. Kharaka Singh

2010-04-22

JITENDRA CHAUHAN, M.M.KUMAR

body2010
Judgment M.M.Kumar, J. 1. The Union of India alongwith its officers have approached this Court by challenging order dated 2.4.2008 passed by the Central Administrative Tribunal, Chandigarh Bench, Chandigarh (for brevity `the Tribunal) in OA No. 129 Pb. 2007 as also order dated 8.7.2008 dismissing RA No. 32 of 2008 seeking review of order dated 2.4.2008. 2. Brief facts of the case as recorded by the Tribunal are as under. The applicant-respondent was subjected to departmental enquiry on the allegation of theft of 3 copper cables. A criminal complaint was also filed on 26.2.1996 against him in the Court of Chief Judicial Magistrate, Patiala. He was issued a charge sheet vide order dated 1.11.1996. In the reply filed by him all the charges were denied and a request was made that in view of criminal proceedings, the departmental proceedings should not be continued under the Railway Servants (Disciplinary and Appeal) Rules, 1968 (for brevity `the Rules). 3. The delinquent employee asserted that he was not afforded adequate opportunity during enquiry and that his defence if disclosed before the Enquiry Officer would have resulted in prejudicing his case in criminal proceedings. He further pleaded that the Investigating Officer Shiv Kumar ASI, who investigated criminal complaint was not examined which has prejudiced. 4. The Enquiry Officer submitted report dated 8.1.1999. The delinquent employee has alleged that no show cause notice was issued regarding the proposed punishment. As a consequence vide order dated 27.2.2001 extreme penalty of removal from service was inflicted upon him. The statutory appeal filed by him was also rejected vide order dated 24.6.2003 by a non speaking order. The criminal case pending before the Chief Judicial Magistrate, Patiala was then decided and vide order dated 11.8.2003 he was acquitted of the charge of theft. The revision petition filed by the delinquent employee was also dismissed vide order dated 12.5.2006 after he has filed OA No. 455 Pb. of 2005. A prayer was made by the delinquent employee for quashing order dated 24.6.2003 dismissing his appeal by the Appellate Authority and order dated 12.5.2006 dismissing his revision petition. 5. The revision petition filed by the delinquent employee was also dismissed vide order dated 12.5.2006 after he has filed OA No. 455 Pb. of 2005. A prayer was made by the delinquent employee for quashing order dated 24.6.2003 dismissing his appeal by the Appellate Authority and order dated 12.5.2006 dismissing his revision petition. 5. The stand taken by the respondent before the Tribunal was that the delinquent employee was caught by the personal of Railway Protection Force for stealing 3 numbers of power cable and keeping the same in his possession illegally and that the order of removal has been issued after following the due procedure under the 1968 Rules. The petitioner also asserted that there was no bar in launching of parallel proceedings against the delinquent employee under the 1968 Rules and as per instructions dated 7.6.1995 (R.I.) the departmental and criminal proceedings on similar charges can be initiated simultaneously which can be continued and concluded without waiting for conclusion of criminal proceedings. It was further alleged that all the witnesses were examined and cross-examined by the parties except one Shri Shiv Kumar who had retired from service and he did not come to attend the enquiry proceedings inspite of several reminders issued to him. 6. The delinquent employee was given 15 days time to file reply on completion of enquiry. He submitted a representation dated 20.10.1999 and on consideration of the same the order of removal from service was passed. The petitioner has placed reliance on instructions dated 8.8.2002 (Rule 2) to submit that it was not mandatory for the disciplinary authority to give railway servants any opportunity of making representation on the penalty proposed and as such there was no force in the contention of the delinquent employee. 7. The Tribunal took the view that issuance of show cause notice before imposition of penalty was mandatory as per rule 10(5) of the 1968 Rules. The view of the Tribunal is discernible from para 8 of the order which reads thus : "8.......This has been vehemently contested by the counsel for the respondents contending that Annexure R/2 is a notification dated 8.8.2002, issued by the Government of India/Ministry of Railway, Railway Board, New Delhi, under proviso to article 309 of the Constitution of India, whereby the President has framed Railway Servants (Discipline and Appeal) (Amendment) Rules, to amend the Railway Servants (Discipline and Appeal) Rules, 1968. Rule 10(5) being relevant is reproduced as under: "If the disciplinary authority having regard to its finding on all or any of the articles of charges and on the basis of evidence adduced during the enquiry, is of the opinion that any of the penalties specified in clause (v) to (ix) of Rule 6 should be imposed on the Railway servant it shall make an order imposing such penalty and it shall not be necessary to give the railway servant any opportunity of making representation on he penalty proposed to be imposed." A persual of the above extracted provision would indicate that now a conscious decision has been taken that it shall not be necessary to give the railway servant any opportunity of making representation on the penalty prosed to be imposed upon a railway servant. There cannot be any dispute about this rule position. However, he fact remains that this notification was issued on 8.8.2002 and as such the new provision, as per the notification itself, has come into force on the date of publication in the Official Gazette. It is not in dispute that in this case the enquiry report s dated 8.1.1999 and in 1999, the Amended Rules of 2002 had not come into force not there is any intention on the part of the authority to make the rule applicable retrospectively. In any case, it is well settled that amendment in a rule is always made applicable prospectively unless a conscious decision is taken to make it operative retrospectively." The aforesaid observations of the Tribunal are in conflict with the 1st proviso to Article 311 (2) of the Constitution which has been amended by Constitution (42nd amendment) Act, 1976 w.e.f. 3.1.1977. It has been expressly stated that it shall not be necessary to give such person any opportunity of making representation on the penalty proposed. In other words, 42 amendment of the Constitution, has done away with the principle of making representation against the penalty proposed after enquiry. 1st proviso to Article 311(2) of the Constitution reads as under : "311. It has been expressly stated that it shall not be necessary to give such person any opportunity of making representation on the penalty proposed. In other words, 42 amendment of the Constitution, has done away with the principle of making representation against the penalty proposed after enquiry. 1st proviso to Article 311(2) of the Constitution reads as under : "311. Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State - (1) xx xx xx xx (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;" A plain reading of the 1st proviso makes it evident that if after enquiry any penalty is to be imposed on the basis of the evidence adduced during such enquiry then it is not necessary to give such person any opportunity of making representation on the proposed penalty. The issue whether issuance of a second show cause notice vests a right in a delinquent official against the proposal of punishment was considered by a Constitution Bench of Honble the Supreme Court in the case of Union of India v. Tulsi Ram Patel, (1985) 3 SCC 398. The Constitution bench concluded that so far rights such an employee had enjoyed for service of a show cause notice against he proposed punishment, had been taken away by 42 amendment and there was no provision of law under which a government servant could claim that right. The Constitution bench concluded that so far rights such an employee had enjoyed for service of a show cause notice against he proposed punishment, had been taken away by 42 amendment and there was no provision of law under which a government servant could claim that right. The aforesaid view emerges from the reading of following para of the judgment : "The question which then arises is, Whether the Constitution (Forty-second Amendment) Act, 1977, as made any change in he law ?" The amendments made by this Act are that in clause (2) that portion which required a reasonable opportunity of making representation on the proposed penalty to be given to a government servant was deleted and in its place the first provision was inserted, which expressly provides that it is not necessary to give to a delinquent government servant any opportunity of making representation on the prosed penalty. Does this affect the operation of the original proviso which, by the Constitution (Forty-second Amendment) Act, became the second proviso ? Such obviously was not and could not have been the, intention of Parliament. The opening words of the second proviso remain the same except that the word `further was inserted after the word `provided, because the original proviso by reason of the insertion of another proviso before it became the second proviso. It should be borne in mind that the show-cause notice at the punishment stage was originally there as a result of the interpretation placed by the Judicial Committee in Lalls case (AIR 1948 PC 121) and by this Court in Khem Chands Case (AIR 1958 SC 300) upon the phrase "a reasonable opportunity of showing cause against the action proposed to be taken in regard to him". Clause (2) as substituted by he Constitution (Fifteenth Amendment) Act merely reproduced the substance of what was held in Khem Chands case. The words which originally found a place in clause (2), "a reasonable opportunity of showing cause against the action proposed to be taken in regard to him", do not any more feature in clause (2). All that clause (2) now provides is an inquiry in which the government servant is informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. All that clause (2) now provides is an inquiry in which the government servant is informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. Clause (2), taken by itself even without the first proviso does not provide; expressly or impliedly, for any opportunity to make a representation against the proposed penalty. After the Constitution (Fifteenth Amendment) Act this second opportunity formed a separate part of clause (2), which part was deleted by the Constitution (Forty-second Amendment) Act..." 8. The question then arose in he case of Tulsi Ram Patel (supra) itself whether sub rule 5 of Rule 10 of the Railway Servants (Disciplinary and Appeal) Rules, 1968 which had originally provided for issuing of a show cause notice with regard to the penalty proposed to be imposed upon the delinquent official and giving him an opportunity of making representation on the proposed penalty on the basis of evidence adduced during enquiry held under Rule 9, the Constitution Bench has noticed that whole of that sub rule was substituted by railway Servants (Disciplinary and Appeal) (3 amendment) Rules, 1978 to bring sub rule 5 in conformity with clause 2 of the Article 311 as amended by Constitution (42 Amendment) Act, 1976. 9. In any case the Constitution Bench has opined that even if any statutory rule framed under proviso to Article 309 of the Constitution provides for issuance of a 2nd show cause notice with regard to proposed penalty on a delinquent official on the basis of findings held in an enquiry then such a requirement is only directory and not mandatory. Dealing with the Central Industrial Security Force Rules, 1969 it has been held that any requirement of issuing 2nd show cause with regard to imposition of penalty, the rule is merely directory. Aforesaid legal position is clear from the reading of para 122 of the judgment which is as follows :- "It will be noticed that Rule 37, expect the last paragraph thereof, is in pari materia with Rule 14 of the Railway Servants Rules and Rule 19 of the Civil Services Rules with this difference that a provision akin to clause (iii) of Rule 14 of the Railway Servants Rules and clause (iii) of Rule 19 of the Civil Services Rules is not to be found in Rule 37 of the CISF Rules. The same interpretation as placed by us on the word "consider" occurring in Rule 14 of the Railway Servants Rules and Rule 19 of the Civil Services Rules must, therefore, be placed upon the word "consider" in Rule 37 of the CISF Rules. The last paragraph of Rule 37 of the CISF Rules is peculiar to itself and does not find a place either in the said Rule 14 or the said Rule 19. It is clumsily worded and makes little sense. To provide that a member of the CISF who has been convicted to rigorous imprisonment on a criminal charge "shall be dismissed from service" and at the same time to provide that "only a notice shall be given to the party charged proposing the punishment of dismissal for his having been convicted to rigorous imprisonment and asking him to explain as to why the proposed punishment of dismissal should not be imposed", is a contradiction in terms. If either of these provisions were taken as mandatory, it would be void as violating he second proviso to Article 311(2) because the penalty contemplated by the second proviso to Article 311(2) is not the penalty of dismissal only but also of removal or reduction in rank, and to make it mandatory to issue a notice to show cause against the proposed penalty of dismissal would equally violate the second proviso because it would whittle down the exclusionary effect of the second proviso. Therefore, both these provisions in the last paragraph of Rule 37 must be read as directory and not mandatory, not only to make sense out of them but also to preserve their constitutionality. So read, a breach of these provisions would not afford any cause of action to a member of the CISF or `Central Industrial Special Force. Therefore, it is abundantly clear that the Tribunal has fallen in patent error of law by treating Rule 10(5) of the 1968 Rules as mandatory which itself has been amended and in any case such like rules are treated as directory in nature. The order of punishment would not be vitiated on any such re-invented ground by the Tribunal. Therefore, the order of the Tribunary taking a contrary view is liable to be set aside. Mr. The order of punishment would not be vitiated on any such re-invented ground by the Tribunal. Therefore, the order of the Tribunary taking a contrary view is liable to be set aside. Mr. J.S. Bhatia, learned counsel for the petitioner has however submitted that the aforesaid issue was not the only one raised before the Tribunal and since the delinquent employee respondent has succeeded on that issue, the other issues were not discussed by the Tribunal. To substantiate his submission, learned counsel has made reference to certain observations made by the Tribunal with regard to continuation of parallel proceedings before the Inquiry Officer as well as the criminal Court. 10. As a equal to the above discussion, the impugned orders dated 2.4.2008 and 8.7.2008 passed by the Tribunal are hereby quashed. However, the matter is remanded back to the Tribunal for decision afresh in accordance with law as the delinquent may have to urge many other pleas. The parties through their counsel are directed to appear before the Tribunal on 25.5.2010. A copy of the order be given dasti on payment of usual charges.