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Allahabad High Court · body

2016 DIGILAW 3209 (ALL)

RAM GOPAL v. UNION OF INDIA

2016-09-20

K.J.THAKER, SUDHIR AGARWAL

body2016
JUDGMENT By the Court.—Heard Sri Dharam Pal Singh, learned Senior Counsel, assisted by Sri S. Niranjan, learned counsel for petitioner and Sri Vijay Kumar Singh, counsel for respondents. 2. This writ petition under Article 226 of Constitution of India has come up assailing judgment and order dated 16.9.2005 passed by Central Administrative Tribunal, Allahabad Bench, Allahabad (hereinafter referred to as ‘’Tribunal’) in Original Application No. 452 of 1999 whereby petitioner’s challenge to order of removal dated 19.6.1997 and appellate order dated 18.12.1997 has failed. 3. Petitioner was initially employed as Muster Roll Casual Labour in 1976 and then regularized in 1988. On 4.2.1995 while posted under Assistant Engineer (North), Mathura Junction petitioner was placed under suspension. At that time he was working as Gangman. Thereafter in exercise of power under Rule 14(ii) of Railway Servants (Discipline and Appeal) Rules, 1968 (hereinafter referred to as “Rules 1968”) disciplinary authority passed order of removal holding that regular enquiry against petitioner is not “reasonably practicable” since none is ready to tender evidence for fear of attack on his life as petitioner was involved in criminal activities of threatening and man-handling, officers of Railway. 4. Petitioner challenged aforesaid order in appeal but the same was dismissed vide order dated 18.12.1997 passed by Senior Divisional Engineer (North) Jhansi whereagainst petitioner filed Original Application which has been dismissed. 5. Sri Dharam Pal Singh, learned Senior Counsel, urged that petitioner was made victim of conspiracy and collusion of senior officers of Railway. One Kuldeep Raj Chopra, Chief Rail Pathway Inspector, Mathura Junction who desired to carry some sleepers, Railway property to his residence at Agra and instructed petitioner to do so, which he declined and annoyed thereto aforesaid Chief Rail Pathway Inspector managed suspension of petitioner through disciplinary authority i.e. Assistant Engineer (North) Mathura Junction. Further that on 9.3.1995, petitioner went to residence of Kuldeep Raj Chopra where he was abused and threatened by Sri Chopra alleging that he has suffered for not carrying out his orders. At the time when petitioner was abused and man handled, some persons were present at the residence of Sri Chopra. Further that on 9.3.1995, petitioner went to residence of Kuldeep Raj Chopra where he was abused and threatened by Sri Chopra alleging that he has suffered for not carrying out his orders. At the time when petitioner was abused and man handled, some persons were present at the residence of Sri Chopra. Petitioner received injuries whereupon he lodged a report at Police Station, Mathura, being Case Crime No. 68 of 1995 under Sections 323 and 504 I.P.C. A complaint was also forwarded to Divisional Railway Manager, Jhansi but nothing happened and instead Sri Chopra prevailed over higher authorities in getting petitioner removed from service without any disciplinary enquiry. It is contended that without disciplinary enquiry, imposition of major penalty upon petitioner is patently illegal. Reliance is placed on a decision in Reena Rani v. State of Haryana and others, (2012) 10 SCC 215 . 6. It is not in dispute that disciplinary authority can impose punishment of removal or dismissal upon an employee without carrying out regular departmental enquiry by invoking powers under Article 311 (2), second proviso clause (b), which permits imposition of major penalty if enquiry is not reasonably practicable. Rule 14(ii) of Rules 1968 incorporates the said principle of Article 311(2), second proviso, and is parimateria. 7. Considering the aforesaid proviso under Article 311, a Constitution Bench in Union of India v. Tulsiram Patel, (1985) 3 SCC 398 , held that condition precedent for invoking Clause (b) of Article 311(2) second proviso is the satisfaction of disciplinary authority that it is not reasonably applicable to hold enquiry contemplated of Clause 2 of Article 311. Words “reasonably practicable” does not mean “impracticable”. Practicable means “capable of being put into practice, carried out in action, effected, accomplished, or done, feasible”. Whether it was practicable to hold enquiry 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). It should be looked into point of view by an ordinary concerned as he would have thought or opined and take a reasonable view of prevailing situations. It is not a total or absolute impracticability which is required by clause (b). It should be looked into point of view by an ordinary concerned as he would have thought or opined and take a reasonable view of prevailing situations. The reasonable practicability of holding an enquiry is a matter of assessment to be made by the disciplinary authority who is competent to do so at present and available on the spot knowing each and every aspect of the facts and circumstances necessary for being knowing whether an enquiry is reasonably practicable or not. A disciplinary authority however is not expected to dispense with a disciplinary enquiry lightly or arbitrarily or out of ulterior motives or merely in order to avoid the holding of an enquiry since the case of Department is weak or must fail if enquiry is conducted. The statutory provisions also require the disciplinary authority to record its reasons for arriving at the satisfaction that the enquiry is not reasonably practicable. This is what the law has been throughout and has been refract in Reena Rani v. State of Haryana and others (supra). 8. In Ved Mitter Gill v. Union Territory Administration, Chandigarh and others, 2015 (8) SCC 86 , Court has approved view taken by High Court that mere mention of fact that disciplinary authority is convinced that it is not reasonably practicable to hold an enquiry is not sufficient and is against mandate of law. Court also relied on the interpretation of Rule 14(ii) of Rules 1968 in Southern Railway Officers Association v. Union of India, (2009) 9 SCC 24 , holding that disciplinary authority should not take a decision in hot haste and must take due care and caution to comply with the mandatory requirement of stringent extra ordinary provisions of Rule 14 (ii), else it would amount to abuse of power conferred upon disciplinary authority. Where reasons are given, Court will not examine sufficiency of reasons as an appellate authority but would confine its review by judging those reasons placing itself in the armchair of a disciplinary authority. The disciplinary authority is the man on the spot. He act on the basis of report/material placed before him. He also knows other facts and circumstances as also the atmosphere in his area of function and also well conversant with the attitude of person concerned. The disciplinary authority is the man on the spot. He act on the basis of report/material placed before him. He also knows other facts and circumstances as also the atmosphere in his area of function and also well conversant with the attitude of person concerned. It was also observed, relying on Tulsiram (supra), that situation which makes holding of an inquiry not reasonably practicable, may exist before disciplinary inquiry could be initiated against a Government servant, or such a situation can also come into existence subsequently during course of an inquiry and at that stage also power under Rule 14(ii) can be exercised. The mere fact that some part of an enquiry has been held will not make any difference. 9. In Risal Singh v. State of Haryana and others, (2015)1 SCC (LS) 351, following earlier decisions in Tulsiram Patel (supra), Jaswant Singh v. State of Punjab, (1991) 1 SCC 362 and Reena Rani v. State of Haryana (supra), Court said that enquiry cannot be dispensed with on mere ipse dixit or irrelevant or nonest grounds. Whenever such an order, passed by disciplinary authority dispensing enquiry, is challenged in a Court of law, it is incumbent upon authorities to show that satisfaction is based on certain objective facts and is not outcome of whims or caprice of the concerned officer. 10. When we judge the facts and circumstances of present case in light of dictum and exposition of law as noticed above, we find substantive material and justification on the part of respondent authorities by proceeding to pass impugned order of removal after dispensing with enquiry holding that it was not reasonably practicable. 11. Earlier petitioner was served with a charge-sheet dated 1.3.1995 alleging charge of misbehaving with senior officer K.R. Chopra, CPWI, Mathura Junction at his residence. Petitioner was initially posted at Mathura wherefrom he was transferred to Kosikalan vide order dated 15.10.1996 passed by Divisional Engineer. Petitioner was not happy with such transfer and on 27.5.1997 forcibly entered chamber of Chief Pathway Inspector, Mathura Junction, misbehaved with him and threatened, for his transfer from Kosikalan to Mathura. On 15.10.1996 petitioner threatened Pathway Mistry and R.K. Saxena, PWI with an Axe in his hand. Subsequently, petitioner tendered written apology on 17.10.1996 assuring good behavior. Petitioner was not happy with such transfer and on 27.5.1997 forcibly entered chamber of Chief Pathway Inspector, Mathura Junction, misbehaved with him and threatened, for his transfer from Kosikalan to Mathura. On 15.10.1996 petitioner threatened Pathway Mistry and R.K. Saxena, PWI with an Axe in his hand. Subsequently, petitioner tendered written apology on 17.10.1996 assuring good behavior. On 24.4.1997 petitioner threatened Y.S. Tyagi, Pathway Inspector with a stick in his hand and did not allow him to move for more than an hour. He threatened A.K. Asthana on 25.5.1997 stating that his family would be liquidated if he (petitioner) is not transferred from Kosikalan to Mathura. Petitioner’s criminal activities terrorising various officers who submitted report but refused to depose as witness having apprehension of loss or damage to their person and family on the part of petitioner. These facts and material have been found exist on record by Tribunal. before us also, nothing has been placed to show that these facts were nonest or concocted. 12. In the impugned order of removal, disciplinary authority had mentioned all the facts in this regard in detail and counsel for petitioner could not dispute that impugned order cannot be said to lack reasons. 13. In the entirety of facts and circumstances and having gone through the judgment of Tribunal impugned in this writ petition, we are satisfied that there is no manifest illegality or error apparent on the face of record, justifying interference by this Court in exercise of its extraordinary jurisdiction under Article 226 of Constitution of India. 14. Writ petition lacks merit. It is accordingly dismissed.