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2013 DIGILAW 2646 (ALL)

Ram Saran Prasad v. Union of India

2013-10-25

Pankaj Naqvi, Sheo Kumar Singh

body2013
JUDGMENT Hon’ble Pankaj Naqvi, J.—Heard Sri Siddhartha Varma, learned counsel for the petitioner and Sri Govind Saran, learned counsel for the respondents. 2. Ram Saran Prasad, has filed the present writ petition for quashing of orders dated 6.9.2009, imposing the punishment of dismissal; 3.12.2009, whereby his appeal was dismissed and 12.1.2010, wherein Original Application No. 34 of 2010, filed by him before the Central Administrative Tribunal, Allahabad Bench, Allahabad was dismissed. 3. The petitioner was a Railway Guard. It was alleged that while reporting for duty for Train No. 567- UP at 17.03 hrs on 5.9.2009 at Chhapra Station, he did not sign the relevant register, thus escaped the breath analyzer test. Further it was alleged that when the train reached Ballia station on 5.9.2009, the petitioner was found in an inebriated stage. The media personnel present at the station, were alleged to have been abused by the petitioner when they attempted to interview him. Although, the Station Superintendent, Ballia station attempted to conduct a medical test by calling the pharmacist at Ballia station, but the petitioner instead of cooperating with the medical staff, fled away from the scene. A first information report was also lodged by Station Superintendent, Ballia against the petitioner with G.R.P. and R.P.F. on 6.9.2009 in respect of the alleged incident dated 5.9.2009. The report alleged that the petitioner refused to undergo the alcohol test and weilded threats to the witnesses present, if they dared to depose against him. The report also alleged that although an attempt was made to collect the names and statements of the independent witnesses, but for fear of reprisal, none came forward. 4. The Disciplinary Authority after considering the report of the incident opined vide order dated 6.9.2009 that it would not be reasonable and practicable to hold an inquiry, and accordingly inflicted an order of dismissal, under Rule 14(ii) of the Railway Servants (Discipline and Appeal) Rules, 1968 (for short the “Rules”). The petitioner preferred an appeal, which came to be dismissed on 6.9.2009. Thereafter, both the above orders were assailed before the Central Administrative Tribunal, Allahabad, which by means of the impugned judgment, dismissed the same on 12.1.2010, hence the present petition. 5. The petitioner preferred an appeal, which came to be dismissed on 6.9.2009. Thereafter, both the above orders were assailed before the Central Administrative Tribunal, Allahabad, which by means of the impugned judgment, dismissed the same on 12.1.2010, hence the present petition. 5. The sheet-anchor submission of Sri Siddartha Varma, learned counsel for the petitioner, is that considering the facts, circumstances and the materials on record, it was not a case, where power could have been exercised under Rule 14(ii). He further submitted that the grounds taken by the disciplinary authority for dispensing with the inquiry, were absolutely non-existent based on no materials and rather based on irrelevant consideration. Sri Varma in support of his submission, placed reliance on the decision of the Apex Court in the case of Union of India v. Tulsi Ram Patel, 1985(4) SCC 395) (5 Judges). 6. Per contra, Sri Govind Saran, learned counsel for the respondents, submitted that considering the materials on record and the fact that the petitioner was a Guard of a running train, found in an inebriated stage, who created ruckus at the platform, weilded threats and dared anyone to depose against him, thereby rendering the lives of the passengers at risk, it was a fit case where the power of dismissal without inquiry was appropriately exercised. He further submits that judicial review is limited and confined only to examine the existence of the grounds for dispensing with the inquiry, and once cogent grounds have been given, the writ petition is liable to be dismissed. 7. Rules 14 of the “Rules” is quoted hereunder : 14. Special Procedure in certain cases.—Notwithstanding anyting contained in Rules 9 to 13 : (i) where any penalty imposed on a Railway servant on the ground of conduct which has led to his conviction on a criminal charge; or (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; (iii) where the President is satisfied that in the interest of the security of the State, it is not expedient to hold an enquiry in the manner provided in the rules; The disciplinary authority may consider the circumstances of the case and pass such orders thereon as it deems fit: 8. Rule 14(2) is analogous to Article 311(2)(b) of the Constitution of India. Rule 14(2) is analogous to Article 311(2)(b) of the Constitution of India. A perusal of Rule 14(ii) would manifest that a power is conferred upon the disciplinary authority, that if it is satisfied for reasons to be recorded in writing, that it is not reasonably practicable to hold an inquiry, then the disciplinary authority is empowered to pass such orders as it deems fit. 9. The Constitution Bench of the Apex Court in the case of Tulsi Ram Patel (supra) had an occasion to examine the scope and ambit of Article 311(2)(b) of the Constitution. The Apex Court culled out the parameters for invoking the said power and also the scope and extent of judicial review in such matters. The relevant paragraphs of the judgment are quoted hereunder : 130. The condition precedent for the application of Clause (b) is the satisfaction of the disciplinary authority that “it is not reasonably practicable to hold” the inquiry contemplated by Clause (2) of Article 311. What is pertinent to note is that the words used are “not reasonably practicable” and not “impracticable”. According to the Oxford English Dictionary “practicable” means “Capable of being put into practice, carried out in action, effected, accomplished, or done; feasible”. Webster’s Third New International Dictionary defines the word “practicable” inter alia as meaning “possible to practice or perform : capable of being put into practice, done or accomplished : feasible”. Further, the words used are not “not practicable” but “not reasonably practicable”. Webster’s Third New International Dictionary defines the word “reasonably” as “in a reasonable manner : to a fairly sufficient extent”. Thus, whether it was practicable to hold the inquiry or not must be judged in the context of whether it was reasonably practicable to do so. It is not a total or absolute impracticability which is required by Clause (b). What is requisite is that the holding of the inquiry is not practicable in the opinion of a reasonable man taking a reasonable view of the prevailing situation. It is not possible to enumerate the cases in which it would not be reasonably practicable to hold the inquiry, but some instances by way of illustration may, however, be given. What is requisite is that the holding of the inquiry is not practicable in the opinion of a reasonable man taking a reasonable view of the prevailing situation. It is not possible to enumerate the cases in which it would not be reasonably practicable to hold the inquiry, but some instances by way of illustration may, however, be given. It would not be reasonably practicable to hold an inquiry where the Government servant, particularly through or together with his associates, so terrorizes, threatens or intimidate witnesses who are going to give evidence against him with fear of reprisal as to prevent them from doing so or where the Government servant by himself or together with or through other threatens, intimidates and terrorizes the officer who is the disciplinary authority or member of his family so that he is afraid to hold the inquiry or direct it to be held. It would also not be reasonably practicable to hold the inquiry where an atmosphere of violence or of general indiscipline and insubordination prevails, and it is immaterial whether the concerned Government servant is or is not a party to bringing about such an atmosphere. In this connection, we must bear in mind that numbers coerce and terrify while an individual may not. The reasonable practicability of holding an inquiry is a matter of assessment to be made by the disciplinary authority. Such authority is generally on the spot and knows what is happening. It is because the disciplinary authority is the best judge of this that Clause (3) of Article 311 makes the decision of the disciplinary authority on this question final. A disciplinary authority is not expected to dispense with a disciplinary inquiry lightly or arbitrarily or out of ulterior motives or merely in order to avoid the holding of an inquiry or because the Department’s case against the Government servant is weak and must fail. The finality given to the decision of the disciplinary authority by Article 311(3) is not binding upon the Court so far as its power of judicial review is concerned and in such a case the Court will strike down the order dispensing with the inquiry as also the order imposing penalty. The case of Arjun Chaubey v. Union of India and others, is an instance in point. The case of Arjun Chaubey v. Union of India and others, is an instance in point. In that case, the appellant was working as a senior clerk in the office of the Chief Commercial Superintendent, Northern Railway, Varanasi. The Senior Commercial Officer wrote a letter to the appellant calling upon him to submit his explanation with regard to twelve charges of gross indiscipline mostly relating to the Deputy Chief Commercial Superintendent. The appellant submitted his explanation and on the very next day the Deputy Chief Commercial Superintendent served a second notice on the appellant saying that his explanation was not convincing and that another chance was being given to him to offer his explanation with respect to those charges. The appellant submitted his further explanation but on the very next day the Deputy Chief Commercial Superintendent passed an order dismissing him on the ground that he was not fit to be retained in service. This Court struck down the order holding that seven out of twelve charges related to the conduct of the appellant with the Deputy Chief Commercial Superintendent who was the disciplinary authority and that if an inquiry were to be held, the principal witness for the Department would have been the Deputy Chief Commercial Superintendent himself, resulting in the same person being the main accusor, the chief witness and also the judge of the matter. 133. The second condition necessary for the valid application of Clause (b) of the second proviso is that the disciplinary authority should record in writing its reason for its satisfaction that it was not reasonably practicable to hold the inquiry contemplated by Article 311(2). This is a Constitutional obligation and if such reason is not recorded in writing, the order dispensing with the inquiry and the order of penalty following thereupon would both be void and unconstitutional. 134. It is obvious that the recording in writing of the reason for dispensing with the inquiry must precede the order imposing the penalty. The reason for dispensing with the inquiry need not, therefore, find a place in the final order. It would be usual to record the reason separately and then consider the question of the penalty to be imposed and pass the order imposing the penalty. The reason for dispensing with the inquiry need not, therefore, find a place in the final order. It would be usual to record the reason separately and then consider the question of the penalty to be imposed and pass the order imposing the penalty. It would, however, be better to record the reason in the final order in order to avoid the allegation that the reason was not recorded in writing before passing the final order but was subsequently fabricated. The reason for dispensing with the inquiry need not contain detailed particular, but the reason must not be vague or just a repetition of the language of Clause (b) of the second proviso. For instance, it would be no compliance with the requirement of Clause (b) for the disciplinary authority simply to state that he was satisfied that it was not reasonably practicable to hold any inquiry. Sometimes a situation may be such that it is not reasonably practicable to give detailed reasons for dispensing with the inquiry. This would not, however, per se invalidate the order. Each case must be judged on its own merits and in the light of its own facts and circumstances. 138. Where a Government servant is dismissed, removed or reduced in rank by applying Clause (b) or an analogous provision of the service rules and the 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. 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. 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 the disciplinary authority was deciding the question whether the inquiry should be dispensed with or not in the cool and detached atmosphere of a Court room, removed in time from the situation in question. Where two views are possible, the Court will decline to interfere. 10. A perusal of the aforesaid judgment would indicate that it is an extraordinary power, which is to be invoked only after satisfaction is recorded by the Disciplinary Authority that it is not reasonably practicable to hold an inquiry. It is not an absolute impracticability, which is to compel the Disciplinary Authority in not holding the inquiry, rather the satisfaction is to be recorded that it is not reasonably practicable to hold an inquiry. This satisfaction is to be arrived at by taking a reasonable view of the ground realities based on relevant materials. Law further enjoins upon the Disciplinary Authority to record reasons, which must be relevant and germane to the core issue, i.e. why it is not considered reasonable and practicable to hold the inquiry? Once reasons have been assigned, which are relevant and germane, then this Court in exercise of its power of judicial review, cannot sit in appeal and take a different view. Once reasons have been assigned, which are relevant and germane, then this Court in exercise of its power of judicial review, cannot sit in appeal and take a different view. Any reason/ground, which does not address the core issue, would be bad in law and would be liable to be struck down. Such a power should not be exercised on the mere ipse dixit of the officer concerned or casually to dispense the services. 11. The order of dismissal passed in exercise of Rule 14(ii) records following reasons, for not considering it reasonable and practicable to hold an inquiry, which are extracted verbatim hereunder : (i) The threat given by the petitioner at the scene of occurrence at platform No. 3 at Ballia, there is no possibility of independent witness and the only person who dared to report against him, is the Station Superintendent, Ballia. (ii) The petitioner, Guard of a running train, did not cooperate in respect of medical examination, which could have been a vital evidence to prove that he was intoxicated. This cannot be reversed and any medical examination later on will not reveal the truth. (iii) The gesture, conduct, behaviour and look of the petitioner gave a clear indication to all the people present at the site that he was under the influence of liquor. It is further corroborated by fact that he escaped from the scene of occurrence without authority and thus absconded from his duty. (iv) The duties of a guard requires sincerity and discipline of highest order. He, in his official capacities, is the in-charge of a running train. A person, like, the petitioner, is found to be unfit to hold such a response (JR 1.02(28), 2.06, 2.09 and operating manual rule No. 2039). (v) No one will like to compromise with the safety of passengers and trains and, if the petitioner had taken up under some other rule, he might take the benefit of law of evidence in view of point No. i and ii above. This incident has caused irreparable damage to the image of the Central Organization in the eyes of the common man. This lost quite only be rectified by inferring a just and proportionate punishment to the person responsible for this. 12. This incident has caused irreparable damage to the image of the Central Organization in the eyes of the common man. This lost quite only be rectified by inferring a just and proportionate punishment to the person responsible for this. 12. Ground No. (i) relates to the alleged threat given by the petitioner to the persons present at the scene of the occurrence because of which there existed no possibility of any independent witness except that of Station Superintendent, Ballia, the author of the report : We have gone through the original records of the case and find that upon the alleged occurrence taking place on 5.9.2009, the Station Superintendent, Ballia lodged a written report with the Officer-in-charge P.S., G.R.P., Ballia and also with Officer-in-charge, P.S., G.R.P., Ballia on 5.9.2009 (available with original records) and 6.9.2009 (Annexure-9). No doubt, the reports recite that the petitioner extended threats to the persons present at the scene of occurrence to depose against him, which prevented the persons from coming forward to depose. On these allegations made in the report, the Disciplinary Authority was taking a view that there was no possibility of any independent witness coming forward to depose except the author of the reports, i.e., the Station Superintendent, Ballia, as a ground to dispense with the inquiry. Apart from the aforesaid bald allegation in the reports dated 5.9.2009 and 6.9.2009, there was no material from which it could be established that why inquiry was not considered reasonable and practicable. There is nothing on record to indicate as to how, in what manner and by whom an attempt was made to collect the names of the witnesses and to record their statements. The Court fails to understand why Station Superintendent, Ballia, who was a complainant and also a witness to the alleged ruckus committed by the petitioner, was not brought in the inquiry proceedings. If Station Superintendent, Ballia could muster the courage, despite alleged threats to lodge a complaint, then certainly he could be a witness in the inquiry. Non-examination of media personnel, who are alleged to be present at the platform at the time of occurrence, also remains inexplicable. Further a close proximity of time between the alleged occurrence in the late evening of 5.9.2009 and the passing of the punishment order on 6.9.2009, indicates that the impugned order was passed on the ipse dixit of the authority concerned. 13. Further a close proximity of time between the alleged occurrence in the late evening of 5.9.2009 and the passing of the punishment order on 6.9.2009, indicates that the impugned order was passed on the ipse dixit of the authority concerned. 13. Ground No. (ii) and (iii) relate to non-cooperation of the petitioner in respect of his medical examination and in respect of his conduct and behaviour, which indicated that he was in an inebriated stage because of which, he fled from the scene : We are of the view that merely because the petitioner absconded from the platform to avoid an alcohol test, could not by itself become a ground to dispense with the inquiry. The said conduct may have had relevance before the Inquiry Officer so as to draw an appropriate inference, but not for dispensing the inquiry. 14. Ground No. (iv) relates to the duties as Guard, on which there could be no quarrel, but once again the same cannot be a basis to dispense services without an inquiry. 15. Ground No. (v) relates to element of risk and safety of passengers in trains and also to the irreparable damage to the image of the railway : Once again, we cannot dispute with the said assessment of the Disciplinary Authority, but that again could not be a ground to bypass the inquiry and pass an order of punishment. 16. Thus, what we find from the aforesaid discussion is that there was absolutely no relevant material before the Disciplinary Authority to dispense with the inquiry. 17. There is yet another aspect of the matter. We also find from the original records that a joint preliminary inquiry was conducted on 5.9.2009 itself, which prima facie found the allegations against the petitioner to be true. If a preliminary inquiry/fact finding inquiry could be conducted on 5.9.2009 itself, we fail to understand why a regular inquiry could not be conducted in the instant case? 18. The Apex Court in the case of Tarsem Singh v. State of Punjab and others, 2006(13) SCC 581, set aside an order of punishment, under Article 311(2)(b) of the Constitution of India inter alia on the ground that if a preliminary inquiry could be conducted prior to an order of punishment, there was no reason why a formal inquiry could not have been initiated. Paragraph 11 of the said judgment is quoted hereunder : “11. Paragraph 11 of the said judgment is quoted hereunder : “11. We have noticed hereinbefore that the formal enquiry was dispensed with only on the ground that the appellant could win over aggrieved people as well as witnesses from giving evidence by threatening and other means. No material has been placed or disclosed either in the said order or before us to show that subjective satisfaction arrived at by the statutory authority was based upon objective criteria. The purported reason from dispensing with the departmental proceedings is not supported by any document. It is further evident that the said order of dismissal was passed, inter alia, on the ground that there was no need for a regular departmental enquiry relying on or on the basis of a preliminary enquiry. However, if a preliminary enquiry could be conducted, we fail to see any reason as to why a formal departmental enquiry could not have been initiated against the appellant. Reliance placed upon such a preliminary enquiry without complying with the minimal requirements of the principle of natural justice is against all canons of fair play and justice. The appellate authority, as noticed hereinbefore, in its order dated 24.6.1998 jumped to the conclusion that he was guilty of grave acts of misconduct proving complete unfitness for police service and the punishment awarded to him is commensurate with the misconduct although no material therefor was available on record. It is further evident that the appellate authority also misdirected himself in passing the said order insofar as he failed to take into consideration the relevant facts and based his decision on irrelevant factors.” 19. In our considered opinion, the ratio in the case of Tarsem Singh (supra) would be squarely applicable on the facts of the present case. 20. We have examined the order passed by the appellate authority, rejecting the appeal preferred by the petitioner and are of the view that the appellate authority too committed the same error as was done by the Disciplinary Authority. The Tribunal simply affirmed the orders passed by the Railway authorities. 21. Considering the matter in totality, we are of the view that the impugned orders were passed in the teeth of law in the case of Tulsiram Patel (supra) and of Tarsem Singh (supra) and, accordingly, the same are liable to be quashed. 22. The writ petition succeeds and is allowed. 21. Considering the matter in totality, we are of the view that the impugned orders were passed in the teeth of law in the case of Tulsiram Patel (supra) and of Tarsem Singh (supra) and, accordingly, the same are liable to be quashed. 22. The writ petition succeeds and is allowed. The impugned orders dated 12.1.2010, 6.9.2009 and 3.12.2009 are quashed. The petitioner would be entitled to all consequential benefits within 2 months from the date of production of certified copy of the order, before the competent authority, leaving it open for the respondents, if they so desire, to conduct a fresh inquiry in the light of observations made above, but in accordance with law. No order as to costs. The original records are returned to Sri Govind Saran, Advocate for the respondents.