1. In this batch of eight writ petitions filed by ex-Railway servants questioning the legality of the orders by which penalty of dismissal from service was imposed against them, after dispensing with the enquiry, in exercise of the powers under R. 14(ii) of the Railway Servants Discipline and Appeal Rules 1968 (hereinafter referred to as the Rules) read with clause (b) of the second proviso to Clause (2) of Art. 311 of the Constitution, the following important questions of law arise for consideration :
(i) Whether after dispensing with the disciplinary enquiry against a civil servant, on the ground that it is not reasonably practicable to hold the enquiry, in exercise of the powers under Clause (b) of the second proviso to Clause (2) of Art. 311 of the Constitution and R. 14(ii) of the Rules, an opportunity should be given by the concerned disciplinary authority to the concerned civil servant to make representation against the imposition of penalty
(ii) Whether the reasons in support of the decision that it is not reasonably practicable to hold an enquiry against the civil servant should be furnished to him, either by recording the same in the order imposing the penalty or separately, and if not whether the non-furnishing of the reasons renders the order imposing the penalty invalid
(iii) Whether an order imposing the penalty after dispensing with the enquiry on the ground that it is not reasonably practicable to be held, is not open to judicial review in a petition under Art. 226 of the Constitution in view of Clause (3) of Art. 311 and if it is open to judicial review, what is the scope and extent of power of judicial review
2. The facts of the case, which have given rise to these petitions, may briefly be summarised as follows : The petitioners were all civil servants on the establishment of the Railways of the Central Government. They were all members of a registered trade union called 'All India Loco Running Staff Association'. On account of certain demands of the union regarding conditions of service of the Railway employees, having not been acceded to by the Railway Department, the Union resorted to a strike in January 1981. The allegations against the petitioners were that they were indulging in acts of indiscipline and intimidation of other workers, who were desirous of not participating in the strike and attending to the duties. Acting on the basis of the report made by the concerned Controlling Officer, the disciplinary authority, having taken the view that the acts alleged against the petitioners were misconduct, which justified the imposition of penalty of dismissal from service against them and also being of the opinion that it was reasonably impracticable to hold an enquiry against the petitioners, invoked its powers under R. 14(ii) of the Rules which is the same as the power given under proviso (b) of clause (2) of Art. 311 of the Constitution and passed the impugned orders. Copies of the orders made against the eight petitioners have been produced as Annexure-A, A-1 to A-7, respectively. The wording of all the orders are similar. Therefore it is sufficient to set out the contents of one such order. The order made against the first petitioner in W.P. No. 33613 of 1981, M. F. Ansari, (Annexure-A dt. 3/5th February, 1981) reads :
Southern RailwayY/F 644/1981/MR/323/MFADivisional Office, Personnel BranchMysore, February 3/5, 1981.PENALTY ADVICE
3. Shri M. Fizuddin Ansari, while functioning as Driver/C/YPR, MR 323, has committed the following offences :
1. That he committed serious misconduct and indulged in activities preparatory and leading to illegal stoppage of work by doing active propaganda and in large scale intimidation and threat.
2. That he has participated in the illegal stoppage of work by absenting himself unauthorisedly on and from 30th January, 1981.
4. The above acts are prejudicial to public order and maintenance of Essential services. I have therefore come to the conclusion that Shri M. Fizuddin Ansari MR. 323, is not a fit person to be retained in service. Accordingly Shri M. Fizuddin Ansari is informed that he is removed from service of this administration with effect from 3rd February, 1981 under R. 14(ii) of the Railway Servants (Discipline and Appeal) Rules 1968.
5. Shri M. Fizuddin Ansari has to hand over to LE/YPR, the Railway property, if any, which is in his possession and advise DPO/MYS where and how he wishes to be settled up and receive payment of his dues.
6. He is also required to vacate the Railway quarters, if any, within one month from 3rd February, 1981. If he fails to vacate the Railway quarters within the period specified, he will be treated as a trespasser and dealt with under the rules for such unauthorised and wrongful occupation of the same.
7. The above penalty is awarded by me and the Appellate Authority is COPS/MAS. Appeal hereof, if any, is to be submitted through proper channel within 45 days from the date of receipt of this advice.
The receipt of this advice should be acknowledged.
Sd. P. M. Joseph,
Divl. Rly. Manager, Mysore.'
Aggrieved by the said orders, the petitioners preferred appeals to the appellate authority. The appeals were dismissed. Their revision petitions also failed. Copies of the orders passed in the appeals and in revisions have been produced as Annexures B, B1 to B7 and Annexures C, C1 to C7, respectively. Aggrieved by the orders of dismissal, after having failed to secure relief at the hands of the appellate and revisional authorities, the petitioners have presented these writ petitions.
3. Sri M. Raghavendrachar, the learned counsel for the petitioners, urged the following contentions :
(i) No reasons for dispensing with the enquiry having been recorded in the impugned orders, or having been communicated separately along with the orders, subsequent to the passing of the impugned orders, the impugned orders are liable to be struck down as having been made in violation of R. 14 of the Rules, and Art. 311(2) of the Constitution and the principles of natural justice.
(ii) Assuming that the dispensing with the enquiry was in accordance with law, it was obligatory on the part of the disciplinary authority to have given a limited opportunity to the petitioners against the imposition of penalty and the same not having been done, the impugned orders are liable to be quashed.
(iii) The orders passed in the cases against the petitioners are all stereo-typed, which indicate that there was no application of the mind to individual cases and the facts justifying the dispensing with the enquiry and the imposition of penalty against each of the petitioners and, therefore, the impugned orders are arbitrary and capricious and, therefore, liable to be set aside.
4. Sri G. Dayananda, learned counsel appearing for the Railways, stoutly resisted the petitions and submitted as follows : The extraordinary situation created by the illegal strike and the tense atmosphere which prevailed owing to the unruly conduct of the petitioners, were such as would justify the dispensing with the enquiry and the imposition of penalty of dismissal from service against them. The report of the Divisional Mechanical Engineer disclosed that the petitioners were indulging in acts of intimidation, and threatening of the workers, who were not desirous of participating in the strike and were willing to attend to their duties. They and the members of their family were threatened with dire consequences if they were to attend to their duties. In this situation, the disciplinary authority was of the opinion that it was impracticable to hold the enquiry and the reasons in support thereof have been recorded in the original records. The decision of the authority so reached is final and cannot be the subject matter of judicial review as in such a sensitive matter the opinion of the disciplinary authority must prevail.
5. In view of the contentions urged on behalf of the petitioners and the submission made on behalf of the Railways, the three important questions of law set out first arise for consideration.
6. In order to appreciate the submissions made for the parties and to answer the questions arising for consideration, it is necessary, in the first instance, to understand the scope of Art. 310 and 311 of the Constitution.
(i) Art. 310 incorporates the doctrine of pleasure. According to the said article except persons appointed to offices, created by the Constitution, for whose tenure of office specific provisions are made in the Constitution itself, all other civil servants of the Union or of the States hold office during pleasure of the President or the Governor, as the case may be. See : Purushotama Lal Dhingra v. Union of India [1958-I L.L.J. 544]. But even in respect of other civil servants also the pleasure doctrine has not been incorporated in absolute terms as it is made subject to the restrictions imposed by Art. 311(2) of the Constitution.
(ii) Clause (2) of Art. 311, as it stands now, reads as follows :
'311(2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an enquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges.'
The clause provides that a civil servant shall not be dismissed or removed or reduced in rank except after an enquiry, in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges.
(iii) The object of the clause and its vital importance to the public interest has been explained by the Supreme Court in the case of Motiramdeka v. G. M., N. E. Rly. [1964-II L.L.J. 467]. Relevant portion of the judgment reads :
'At this stage, we ought to add that in a modern democratic State the efficiency and incorruptibility of public administration is of such importance that it is essential to afford to civil servants adequate protection against capricious action from their superior authority. If a permanent civil servant is guilty of misconduct, he should no doubt be proceeded against promptly under the relevant disciplinary rules, subject, of course, to the safeguard prescribed by Art. 311(2); but in regard to honest straightforward and efficient permanent civil servants, it is of utmost importance even from the point of view of the State that they should enjoy a sense of security which alone can make them independent and truly efficient.' The above observation forcefully explains the importance of ensuring the security of tenure of civil servants for the effective functioning of democratic system of Government as envisaged by the Constitution for which purpose clause (2) of Art. 311 is incorporated.
(iv) The second proviso to clause (2) of Art. 311, however, incorporates three exceptions to the requirement of holding an enquiry prescribed under clause (2) of Art. 311, before imposing any one of the three major penalties against a civil servant. The three exceptions are incorporated in clauses (a), (b) and (c) of the second proviso to Art. 311(2). They read :
'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; or
(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 enquiry; or
(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 enquiry.'
A careful reading of the three clauses would show that the scope, purpose and intendment of the three clauses are qualitatively different from each other.
7. (i) Under clause (a), the enquiry is dispensed with by the force of the clause itself in the case of a civil servant against whom a finding that he is guilty of a charge framed against him by a criminal court is given by the Court. Thus under this clause, the conduct of the civil servant which constituted the criminal charge framed against him by a Criminal Court, of which he was convicted in the inquiry held by the Criminal Court, is treated as equivalent to the finding in a departmental inquiry required to be held under clause (2) of Art. 311 and the relevant rules framed under Art. 309 and the disciplinary authority is empowered to impose the penalty taking the finding recorded by the Criminal Court as the basis. In other words, what clause (a) provides is that the holding of a departmental inquiry is that the holding of a departmental inquiry is unnecessary and superfluous when the civil servant concerned has already been found guilty of a criminal charge by a Court of law.
(ii) Clause (b), confers a special power and provides a special procedure. It authorities the dispensing with the inquiry in an individual case if the circumstances so warrant. This clause gives an extraordinary power to the concerned disciplinary authority to impose any one of the major penalties without enquiry, on a civil servant against whom the holding of the enquiry in its pinion is reasonably impracticable. To such cases, clause (2) of Art. 311 becomes inapplicable. As the enquiry prescribed under Art. 311(2) is meant to ensure security of tenure to civil servants in public interest and the dispensing with the enquiry has got very serious consequences both to the individual officer and the pubic interest, the clause requires the authority to record reasons in writing as to why the holding of the enquiry is reasonably impracticable. Therefore it follows that unless the disciplinary authority first passes an order recording its reasons as to why the holding of an enquiry is reasonably impracticable, the power to impose penalty without enquiry would be unavailable. Therefore under this clause, the recording of reasons in support of the decision that the holding of enquiry is reasonably impracticable is mandatory and therefore a condition precedent for the acquisition of power to impose penalty without enquiry.
(iii) Clause (c) again deals entirely with different types of cases. It is significant that while the power to impose penalty on the basis of the conduct which has lead to the conviction of a civil servant under clause (a) and after recording reasons to the effect that holding of an enquiry is reasonably impracticable under clause (b), is conferred and exercisable by the authority on whom the power to impose penalty of dismissal, removal or reduction in rank is conferred by the rules or legislative enactment made under Art. 309 of the Constitution, the power under clause (c) has to be and can be exercised only by the Head of the Union or the Head of the State, as the case may be. Further, clause (c) is a case where holding of an enquiry is not impracticable but is considered inexpedient having regard to the interest of the security of the State and the satisfaction in this behalf is to be of the President or the Governor, as the case may be, and none else. Obviously, having regard to the paramount importance of the security of the State, the power is conferred on the Head of the State to determine the service of a civil servant by exercising his pleasure. Therefore, the moment the satisfaction of the President or the Governor, as the case may be, is arrived at, in the case of a civil servant that the holding of a disciplinary enquiry is not in the interest of the security of the State, the restriction impose by Art. 311(2) on the doctrine of pleasure incorporated in Art. 310 gets lifted and the tenure of the civil servant becomes liable to be determined by an order of the President or the Governor, as the case may be, and to such a case clause (2) of Art. 311 is not applicable. Further it is significant that the words dismissal, removal or reduction in rank are not used in clause (c) of the proviso obviously for the reason that when the President or the Governor, as the case may be, forms an opinion that in the case of a civil servant, the holding of an inquiry is not in the interest of the security of the State, the only course contemplated is to determine the tenure of his service by the imposition of penalty of dismissal or removal or compulsory retirement, by the exercise of the pleasure under clause (1) of Art. 310 of the Constitution, as in such a case the continuance of the civil servant in a lower post would be inconsistent with the formation of an opinion that the records against the civil servant are such as would not justify the holding of the inquiry in the interest of the security of the State. See : P. H. Ranganath v. the Dy. Commr. of Police C. A. R., Bangalore, W.P. No. 4114 of 1980, dated 15.9.1981 (Karnataka).
8. To sum up, the purport of the three clauses is -
(i) Clause (a) substitutes a criminal trial in which a civil servant is found guilty of criminal charge to a departmental enquiry;
(ii) Clause (b) provides for dispensing with the enquiry into the misconduct of a civil servant, if the holding of the same is reasonably impracticable; and
(iii) Clause (c) dispenses with the holding of the enquiry even if it is practicable but, in the opinion of the President or the Governor, the holding of enquiry is not expedient in the interest of the security of the State.
9. There is another important clause in Art. 311, namely clause (3) of that article. It reads :
'311(3) If, in respect of any such person as aforesaid, a question arises whether it is reasonably practicable to hold such enquiry 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.'
This clause provides that if a question arises whether it is reasonably practicable to hold an enquiry, the decision of the authority empowered to dismiss or remove such person or reduce him in rank, shall be final. The wording of clause (3) would indicate that it applies only to a case falling under clause (b) for the following reasons : There is no question of dispensing with the enquiry in a case falling under clause (a) for the reason that the clause itself does not speak of the dispensing with the enquiry and as pointed out earlier, the effect of the clause is to treat the finding in the enquiry held by the criminal court in a criminal trial itself as the basis for the imposition of the penalty and therefore it is not a case of dispensing with the enquiry, but is a case of substitution. Again under clause (c) it is not a case of taking a decision as to whether the holding of an enquiry is reasonably practicable or not but speaks of satisfaction of the President or the Governor, as the case may be, that it is inexpedient to hold the enquiry in the interest of the security of the State, which means even assuming that it is practicable, it is inexpedient as that would result in exposure of information, which is not expedient in the interest of the security of the State. Therefore clause (3) has application only to clause (b) of the proviso to Art. 311(2) and therefore must be given due weight in determining the extent of judicial review of a decision taken by the disciplinary authority under clause (b) of Art. 311. These are cases which relate to the exercise of the power under clause (b).
10. The Rules are those framed by the President under Art. 309 of the Constitution to regulate the disciplinary proceedings against the railway servants. Rules 9 to 13 of the Rules prescribe the procedure to be followed in a disciplinary enquiry instituted against a railway servant. Rule 14 reads :
'14. Special procedure in certain cases - Notwithstanding anything contained in Rules 9 to 13. -
(I) Where any penalty is 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; or
(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 these rules;
the disciplinary authority may consider the circumstances of the case and make such order thereon as it deems fit;
Provided that the Commission shall be consulted, where such consultation is necessary, before any orders are made in any case under these rules.'
11. Having analysed the scope of Art. 311 and rule 14, I shall now proceed to consider the three contentions urged for the petitioners :
I. Whether it is obligatory that the reasons for dispensing with the enquiry should be incorporated in the order or communicated separately
The first contention urged for the petitioners is that as clause (b) of the second proviso to Art. 311(2) as also Rule 14(ii) of the Rules require that the disciplinary authority must record its reason for coming to the conclusion that the holding of the enquiry is reasonably impracticable, it follows, that the power to impose penalty without enquiry is not available and cannot be exercised unless the reasons for doing so are recorded in the impugned order or at least communicated separately along with or immediately after the orders are made. It cannot be disputed indeed it was not disputed by the learned Counsel for the respondents that the power to impose penalty without enquiry is not at all available unless the competent authority records its reasons in writing as to why the holding of the enquiry as required under clause (2) of Art. 311 is reasonably impracticable. Therefore, it is unexceptionable that the recording of reasons in support of the decision that the holding of an enquiry is not reasonably practicable must precede and is a condition precedent to the passing of an order imposing penalty. But the question is whether non-incorporation of those reason in the order imposing the penalty or non-communication of the reasons separately to the civil servant on whom the penalty is imposed without an enquiry vitiates the orders imposing the penalty The answer, in my opinion, is implicit in the provision. As indicated earlier, clause (b) deals with extraordinary cases in which the disciplinary authority for recorded reasons comes to the conclusion that the holding of an enquiry is not reasonably practicable. The circumstances under which the holding of enquiry may be considered as not practicable are manifold and it is difficult to catalogue the situations. To give only one illustration, there may be cases were the disciplinary authority arrives at a decision on that the holding of an enquiry is not reasonably practicable, on the ground that the charges levelled against a civil servant are that he was indulging in acts of intimidation and violence and the person, who were eye-witnesses to such acts and who furnished information to the concerned disciplinary authority or the reporting authority, had also told him that they were terribly afraid of giving evidence in an open enquiry against the concerned civil servant as it is likely to result in physical harm to them or members of their family at the hands of the civil servant, who indulged in such activities and that he had actually threatened them to such dire consequences and it is for the said reason the disciplinary authority came to the conclusion that it was not reasonably practicable to hold the enquiry. If that is the ground on which a disciplinary authority has come to the conclusion that the enquiry was not reasonably practicable; which indeed is a good ground for doing so, it would be fanciful to suggest that the said ground should be communicated to the concerned officer, either by incorporating it in the order or by means of a separate communication as that would have the effect of disclosing the names of the persons on whose information the penalty of dismissal was imposed on the civil servant, to him, against whom they were afraid of giving evidence and thereby betraying the confidence reposed by them in the authority while furnishing information and expose them to the onslaughts of the civil servants. There may be cases in which, the reasons for dispensing with the enquiry could be made public. For instance, the enquiry may become impracticable if a civil servant is absconding for one reason or the other, and his whereabouts are not known. In such a case, though communication of the reason is impossible, publication of the same in the official gazette or newspaper is practicable and desirable too. But there is no legal compulsion for communicating the reasons, it is left to the discretion of the disciplinary authority. Therefore I am unable to agree that the reasons required to be recorded for arriving at a decision that the holding of an enquiry in a given case is impracticable, should either be incorporated in the order or communicated to the civil servant concerned.
12. Learned counsel for the petitioners, however, submitted that as the order is an appealable order, unless the reasons are communicated, no effective appeal could be preferred to the appellate authority. I am not impressed by this argument either. Rule 22 of the Rules prescribes the procedure for the disposal of appeal presented against an order imposing penalty on a railway servant. According to the rule, the appellate authority is required to consider -
(i) Whether the procedure followed was in accordance with law and if not whether it has resulted in miscarriage of justice;
(ii) Whether the findings recorded in the enquiry were based on evidence; and
(iii) Whether the penalty imposed was proportionate to the gravity of the charge.
It is no doubt open to a civil servant to set out facts and circumstances of the case and also the reasons on the basis of which he wants the appellate authority to set aside the order imposing penalty made by the disciplinary authority in an appeal preferred under the rule. But whatever that may be, the above rule, creates on obligation on the part of the appellate authority to consider the regularity of the proceedings, the soundness of the findings and the justification for the quantum of penalty, when a civil servant requests the appellant authority through an appeal to set aside the penalty. Therefore in a case falling under rule 14 of the Rules also, if the concerned civil servant prefers an appeal to the appellate authority, the authority is bound to consider, whether the procedure prescribed for imposing that penalty had been followed. In view of clause (b) of the second proviso to Art. 311(2) read with Rule 14(ii) of the Rules, the procedure required to be followed by the disciplinary authority before imposing the penalty is -
(i) to record reasons, as to why the holding of a disciplinary enquiry in respect of a misconduct reported to have been committed by a civil servant, which justified the imposition of a penalty, is not reasonably practicable; and
(ii) to take a decision regarding quantum of penalty.
Therefore the appellate authority, whether the civil servant is in a position to set out the grounds in his appeal or not, in law, is bound to consider the aforesaid two grounds and to pass an appropriate order, which it is competent to make in accordance with law. If an appellate authority makes an order without complying with the requirement of Rule 22 of Rules, the order would suffer from a serious legal infirmity. Therefore I am unable to agree that there is any obligation to communicate the reasons by incorporating the same in the order imposing the penalty or otherwise.
13. It should however be made clear, at this stage that when the legality of an order imposing the penalty after dispensing with the enquiry is challenged before the High Court in a petition under Art. 226 of the Constitution (as the order is open for judicial review as held later), the respondent-authority is bound to produce the original records before the Court, in order to enable it to satisfy itself, as to whether the conditions prescribed in clause (b) of the second proviso to Art. 311(2) of the Constitution have been complied with. In this behalf, the observations made by a Division Bench of this Court in the case of Medhi Ali v. Union of India, 1972 (1) Mys. L.J., 339 at 347 while rejecting the plea of the Union Public Service Commission, claiming privilege in respect of certain records, relying on Section 123 of the Evidence Act in a petition under Art. 226, are apposite. The Division Bench stated thus :
'27. If the principles already discussed as derived from the rulings of the Supreme Court are borne in mind, the provisions of the Evidence Act cannot be permitted so to operate as to defeat the very purpose of judicial review. When such a wide power is conferred by the Constitution itself on High Courts, there could not be the slightest doubt that due, proper and effective exercise of the said power subserves a high public purpose. The exercise of that power can be whittled down only by another provision of equal status, also subserving a similarly high public purpose. A provision of the said status and nature can only be a provision in the Constitution itself as, for example, clause (3) of Art. 163.
28. The doctrine of privilege in the Evidence Act is also conceived in public interest. What that interest is and how the same should be protected or is sought to be protected by the Evidence Act, are pointed out by the Supreme Court in the case of Sukhdev Singh : 2SCR371 . The distinction between the purpose served by private civil litigation and the purpose sought to be achieved by proceedings under Art. 226 of the Constitution clearly is that whereas the former is governed by private interest of parties, the latter is governed by a high public purpose of the necessity of judicial review for keeping the exercise of administrative power within the bounds of law and subject to the provisions of Part III of the Constitution.
29. When therefore the Constitution reposes great trust in the High Courts in conferring the power under Art. 226 of the Constitution, it is not difficult to infer that the Constitution trusts the High Courts also to see that public interest does not suffer by disclosure of any of the contents of any document if they are of opinion that such disclosure might jeopardise public interest.
30. In the light of all these considerations, we are of the opinion that whereas under the Evidence Act the Court's power is limited to determining the question whether a particular document relates to affairs of the State and the power or discretion of deciding whether the disclosure of any of the contents of such a document will injure public interest is entrusted to the officer as the head of the department, Art. 226 must be interpreted as entrusting both those powers to the High Courts which will no doubt take into account, and have due regard for the case of the head of the department that, in this opinion, a disclosure of any of the contents thereof may injure public interest.
31. Unlike in the case of ordinary civil litigation the very production of a document as evidence in a case entitles all the parties to inspect the same, the calling of documents by a High Court under Art. 226 being primarily for the satisfaction of the High Court on a question or a matter relevant to or closely related to the exercise of its power of judicial review, the mere fact that the Court has looked into a document does not per set entitled the parties to look into it. Whether and if so, to what extent the contents or any part of the contents of a document may be disclosed in the interest of justice to any of the parties is a matter exclusively within the jurisdiction of the High Court.'
In the light of the aforesaid authority, I hold that while the communication of the reasons for the decision under Clause (b) of the second proviso to Art. 311(2) to the civil servant concerned is not mandatory, production of the records in a petition filed by him challenging the legality of the decision before the Courts empowered by the Constitution to review the decision is obligatory.
II. Whether opportunity to make representation against the proposed penalty is obligatory
14. Learned Counsel for the petitioners contended that even assuming that the decision to dispense with the enquiry was there and it was valid, unless an opportunity was given to make representation against the proposed penalty, the order must fall to the ground as what was permitted by Clause (b) of the second proviso to Clause (2) of Art. 311 and Rule 14(ii) of the Rules, was only to dispense with the enquiry and not the giving of second show cause notice. In support of this contention, reliance was placed on the decision of the Supreme Court in Divisional Personal Officer, S. R. v. T. R. Chellappan [1976-I L.L.J. 68]. In that case, the Supreme Court was interpreting Rule 14 of the Rules. The relevant portion of the judgment on which the learned Counsel relied, reads -
'...... It is possible that the delinquent employees may be found guilty of some technical offence, for instance, violation of the transport rules under the Motor Vehicles Act and so on, where no major penalty may be attracted. It is difficult to lay down any hard and fast rules as to the factors which the disciplinary authority would have to consider, but I have mentioned some of these factors by way of instances which are merely illustrative and not exhaustive.
* * * * *
The statutory provision referred to above merely imports a rule of natural justice in enjoining that before taking final action in matter the delinquent employee should be heard and circumstances of the case may be objectively considered. This is in keeping with the sense of justice and fair-play.'
On the basis of the above observations, learned Counsel for the petitioners contended that the expression 'consider' used in the last part of Rule 14 of the Rules would make it obligatory for the disciplinary authority to take into account the plea of the civil servant concerned regarding the quantum of penalty.
(i) The Supreme Court, in that case, was considering a case falling under Clause (1) of Rule 14 of the Rules which corresponds to Clause (a) of the second proviso to Clause (2) of Art. 311 The Supreme Court observed that there may be convictions against a civil servant on minor charges, involving traffic offences and the like and therefore, the consideration which the disciplinary authority was required to make before arriving at the decision regarding the quantum of penalty, did not exclude the application of the rules of natural justice, and it would be fair that the concerned civil servant should be heard before a decision is taken to impose a penalty on the basis of the conduct which lead to his conviction. Having regard to the qualitative difference in the scope of the three clauses analysed earlier, it appears to me that the observations of the Supreme Court in the case of Chellappan (supra) which was made in a case arising to Clause (2) of Art. 311, has no application to the case arising under Cls. (b) or (c) of the proviso. In fact this distinction has been explained by a Division Bench of this Court in Veerangaiah v. State of Karnataka 1981 (2) Kar. L.J., 489. That batch of cases arose under Clause (c) of the second proviso to Art. 311(2) of the Constitution. After the Governor recorded his satisfaction that the holding of an enquiry was not expedient in the interest of the security of the State, penalty of dismissal from service was imposed against the petitioners therein. One of the contentions urged by them, relying on the judgment of the Supreme Court in the case of Chellappan (supra) was that before passing an order imposing the penalty, the principles of natural justice should be complied within that an opportunity should be given to make representation against the proposed penalty. The Division Bench of this Court, after pointing out the difference between the cases under Clause (a) and Cls. (b) and (c) of the second proviso to Art. 311(2) stated thus :
'......... Same thing cannot be said in regard to the dispensation of enquiry falling under the remaining two categories. Second category is one in which disciplinary enquiry itself may be dispensed with on the ground that the delinquent official is absconding or it is not reasonably practicable to hold an enquiry.
If the official himself is absconding, it is not possible to hold an enquiry. The question for consideration is as to whether it is possible to draw an inference that even in such circumstances, there is an obligation on the part of the disciplinary authority to hold a minimum enquiry atleast. Same is the position in regard to the dispensation of enquiry falling under the last category.
We have no hesitation in holding that the principle laid down by the Supreme Court applies only to cases falling under the first category where the penalty is sought to be imposed on the ground of conduct which has led to the official's conviction on a criminal charge. In our opinion the principle laid down by the Supreme Court does not apply to cases falling under the third category where the enquiry is dispensed with on the ground that it is necessary to do so in the interest of the security of the State.'
It is well settled that rules of natural justice do not supplant the law but supplement it. (See A. K. Kraipak v. Union of India) : 1SCR457 . On this aspect the Supreme Court in the case of Union of India v. J. N. Sinha [1970-II L.L.J. 284] at 287 said thus :
'..... These rules can operate only in areas not covered by any law validly made. In other words they do not supplant the law but supplement it. It is true that if a statutory provision can be read consistently with the principles of natural justice, the Courts should do so because it must be presumed that the legislatures and the statutory authorities intend to act in accordance with the principles of natural justice. But if on the other hand, a statutory provision either specifically or by necessary implication excludes the application of any or all the rules of principles of natural justice then the Court cannot ignore the mandate of the legislature or the statutory authority and read into the concerned provision the principles of natural justice.'
In my opinion, the nature and purpose of the power conferred under clause (b) of the second proviso to Art. 311(2) and rule 14(ii), and its amplitude excludes the application of rules of natural justice by necessary implication and therefore the contention that opportunity to make representation should be given against the quantum of penalty even in such cases is devoid of merit.
(ii) There is another reason for rejecting the second contention. The case of Chellappan (Supra) was decided at a point of time when Art. 311(2) provided for two distinct and separate opportunities, the first consisting of an oral enquiry in which a finding on the charge was required to be recorded and if the finding was that the civil servant concerned was guilty, a second opportunity to contest the findings as also the quantum of penalty proposed to be inflicted, had to be given. Art. 311(2) has since been amended by the Constitution (Forty-second) Amendment Act which came into force from 1st February, 1978, which contemplates only one opportunity. When that is the position, under clause (2) of Art. 311 itself, there is no basis to hold that in a case falling under exceptions to the said clause, only the first opportunity, namely, the enquiry is dispensed with and the second opportunity, namely, he opportunity to make representation against the proposed penalty, is saved.
III. Are the impugned orders open for judicial review and if so to what extent.
15. (i) With reference to this point, the learned counsel for the petitioners submitted as follows : The reading of the order passed in the cases would show that the disciplinary authority had acted mechanically and had passed stereo-typed orders against all the petitioners. This indicates that there was no application of the mind to the individual cases. There was absolutely no justification for dispensing with the enquiry. The orders passed, therefore, are liable to be struck down on the ground that they are arbitrary and capricious.
(ii) Learned counsel for the Railways on the other hand submitted that the reasons have been recorded in each case and though they have not been incorporated in the impugned orders the disciplinary authority had acted with justification. He further submitted that the satisfaction of the disciplinary authority that the enquiry was impracticable was final and not open to judicial review.
16. In view of these submissions, the point for consideration is, whether the impugned orders are open for judicial review and even if they are, what is the scope and extent of judicial review of such an administrative decision. In finding out the answer to the point, the object and purpose of clause (2) of Art. 311, which are highlighted by the Supreme Court in the case of Motiram Deka (Supra) in the observations extracted earlier, which formed the basis for striking down of rules 148(3) and 149(3) of the Railway Establishment Code, which empowered the railway administration to terminate the services of a permanent railway servant by mere issue of notice should be borne in mind. Cls. (b) and (c) of the second proviso incorporates two types of exceptions of Art. 311(2). Clause (b) enables the competent authority to impose a major penalty after dispensing with the enquiry if in a given case, there is sufficient basis to hold that holding of an enquiry is reasonably impracticable and at the same time the acts alleged against them are such as would justify the imposition of the penalty. Clause (c) permits the dispensing with the enquiry and the removing of a civil servant from service if the Head of the Union or the State, as the case may be comes to the conclusion that the holding of the inquiry in a given case is inexpedient. Both these clauses are also incorporated in public interest. Therefore in deciding the scope of judicial review, in respect of an order made under clause (b) not only the importance attached to the security of tenure guaranteed to civil servants under Art. 311(2) in public interest as a rule but also the public interest intended to be protected by the exceptions incorporated in cls. (b) and (c) of the second proviso to Art. 311(2) should receive due consideration. As its wording indicates clause (b) empowers the competent authority to dispense with the enquiry, if for reasons recorded in writing, the holding of enquiry is reasonably, impracticable. The words 'reasonably impracticable' are of great significance. They would indicate that the situation which permits the dispensing with the enquiry in accordance with the prescribed procedure is reasonably not possible though not impossible. Therefore great weight has to be attached to the decision of the concerned disciplinary authority in the matter, and cannot be lightly interfered with. Further, there is clause (3) of Art. 311 which specifically provides that whenever a question arises as to whether the holding of an enquiry was reasonably impracticable or not, the decision of the competent authority is final. Though no reliance is placed by the respondents on this clause and there is no reference to it in the statement of objection, the same being an express constitutional provision, cannot be lost sight of, or ignored. It is well settled that as far as the jurisdiction of the High Court under Art. 226 is concerned, while it cannot be controlled or restricted by any provision of an enactment of legislature, if there are constitutional provisions which curtail or restrict the powers of the High Court under Art. 226, such restriction or curtailment must prevail. On this aspect, a Division Bench of this Court in the case of Medhi Ali (Supra) observed thus :
'17. So far as the nature and amplitude of power of High Courts under Art. 226 of the Constitution is concerned, nothing more need be stated than what is found stated in the ruling of the Supreme Court already cited giving effect to the absolute and unqualified terms in which the Article itself confers that power. It is also pointed out that the only limitation on that power must be such as is founded on some provision of the Constitution itself. Conferment of the power itself carries with it conferment of all powers ancillary and incidental thereto, which are necessary for the effective exercise of the said power. If therefore there is anything in any statute other than the Constitution itself which makes the exercise of the main power less effective than it should be or altogether ineffective then such provision must necessarily yield place to Art. 226 and make the way clear for its effective exercise.'
Thus there can be no doubt that clause (3) of Art. 311(2) being a provision of the Constitution, the power conferred on this Court under Art. 226 of the Constitution cannot be exercised in a manner inconsistent with the finality given by clause (3) to the decision of the competent authority acting under Clause (b) of the second proviso to Art. 311(2). Therefore the crucial question for consideration is, whether there is any scope for judicial review at all in view of clause (3) of Art. 311. Answer to this question, in my opinion, has to be found on a harmonious construction of, clause (2), clause (b) of the second proviso to clause (2), and clause (3) of Art. 311 of the Constitution, in that care should be taken that the construction placed on any one of the clauses does not defeat the intention and purpose of the other.
17. I shall now proceed to ascertain the scope of judicial review, giving due weight to all the three clauses. In view of Art. 311(2), the rule is, that in every case before imposing any one of the penalties against a civil servant an enquiry should be held giving the concerned civil servant a reasonable opportunity of defending himself. Contents of such reasonable opportunity could be specified by rules framed or law enacted under Art. 309 of the Constitution. The intent and purpose of the clause has been expounded by the Supreme Court in Motiram Deka's case (supra). The Supreme Court pointed out that the clause is intended to ensure security of tenure to the civil servants, which is essential to enable them to exercise the power and discharge the duties of the post to which they are appointed, without fear or favour, which is of utmost importance for the democratic system established under the Constitution. That being the intendment and purpose of clause (2) of Art. 311, the mandatory requirement of holding an enquiry before imposing any major penalty against a civil servant, incorporated in that clause is mainly in the interest of the public and incidentally it ensures to the benefit of the civil servants. Thus clause (b) of the second proviso to Art. 311(2) being an exception, to Art. 311(2), a case can be dealt with under the clause, by strictly complying with the conditions prescribed thereunder. Clause (b) in express terms requires the authority to record reasons, on the basis of which it is decided that holding of an enquiry is impracticable. The mandatory requirement to record reasons must necessarily mean that non-recording of reasons in support of the decision that the holding of an enquiry is reasonably impracticable would not bring the case under the exception at all. Similar would be the position if the reasons recorded are patently untenable or fanciful and have no nexus to the dispensing with the enquiry. It is well settled that an act or an order made without complying with the mandatory requirement, prescribed by law, is invalid and the aggrieved party has the right to get it set aside by an order of competent court. Therefore, clause (3) cannot be given such a wide interpretation, which would protect an order made in flagrant violation of the mandatory requirement incorporated in clause (b) of the second proviso to Art. 311(2). If clause (b) of the second proviso to clause (2) and clause (3) of Art. 311 is given such a wide interpretation, it would give rise to a situation in which by the mere chanting of the provision of clause (b), the penalty of dismissal or removal or reduction in rank could be imposed on any civil servant without inquiry and that order would be immune to judicial review and thereby the intention and purpose of Art. 311(2) stands frustrated. A construction which leads to such result must be eschewed.
18. At this stage it is appropriate to remember the extent of power of judicial review available against an administrative decision, required to be taken on subjective satisfaction. The scope of judicial review of administrative action in such circumstances is well demacrated. In the case of Shalini Soni v. Union of India : 1980CriLJ1487 , on that aspect of the matter, the Supreme Court said thus :
'It is unwritten rule of the law, constitutional and administrative, that whenever a decision making function is entrusted to the subjective satisfaction of a statutory functionary there is an implicit obligation to apply his mind to pertinent and proximate matters only, eschewing the irrelevant and the remote. Where there is further an express statutory obligation to communicate not merely the decision that (but also) the grounds on which the decision is founded, it is a necessary corollary that the grounds communicated, that is, the grounds made known, should be seen to pertain to pertinent and proximate matters and should comprise all the constituent facts and materials that went in to make up the mind of the statutory functionary and not merely the inferential conclusions.' (See also C. M. Engineer v. Jyothi prasad S. L. R. 1975 (2) Cal. 437 at pp. 462-462).
19. The observations in the minority judgments in the case of Kesavananda v. State of Kerala : AIR1973SC1461 , are also apposite. In that case constitutional validity of Art. 31C introduced by Section of the Constitution (25th Amendment) Act which in express terms said that declaration made by the concerned legislature to the effect that an Act enacted by it was intended to give effect to the Directive Principles enshrined in Art. 39(b) and (c) of the Constitution, upon which the law would become immune from attack on the ground of being violative of Arts. 14, 19 and 31, was conclusive and not open to be questioned before the Court was challenged, as such declaration made even in respect of a law which did not give effect to the said policy was not open for judicial review. While the majority struck down the second part of Art. 31(C) as violative of the basic structure of the Constitution on account of the sweeping protection given to a legislative declaration, the minority Judges were of the view that even with such wide wording judicial review was not totally barred. In this behalf, Ray, J., as he then was, observed at page 1712 para 1050 thus :
'In order to decide whether a statute is within Art. 31-C the Court may examine the nature and the character of legislation and the matter dealt with as to whether there is any nexus of the law to the principles mentioned in Art. 39(b) and (c). If it appears that there is no nexus between the legislation and the objectives and principles mentioned in Art. 39(b) and (c), the legislation will not be within the protective umbrella. The Court can tear the veil to decide the real nature of the statute if the facts and circumstances warrant such a course.'
Similar views were expressed by Mathew, J. (at page 1965 para 1792), Dwivedi, J., (at page 2016 para 1993) and Chandrachud, J., as he then was (at page 2056 para 2155). In fact in spite of the language of the provision it was conceded for the Union of India that the Courts were empowered to find out as to whether the provision of the Act had any nexus to the objects enshrined in Art. 31(b) and (c) inspite of the legislative declaration and if not can go into the constitutional validity of the law. (See at page 1609 para 618). Clause (3) of Art. 311, unlike Art. 31-C does not state that the satisfaction of the competent authority regarding dispensing with the inquiry prescribed under Art. 311(2) cannot be questioned before the Courts. It however states that the satisfaction of the authorities arrived at under clause (b) is final. Therefore it appears to me that the scope for judicial scrutiny as indicated in the aforesaid observations in the case of Keshavananda (Supra) notwithstanding the working of Art. 31-C, is helpful in construing clause (3) of Art. 311 and clause (b) of the second proviso. As clause (b) requires that decision must be taken only after recording reasons the decision so taken must therefore conform to the aforesaid tests. A satisfaction arrived in that manner only gets protected by clause (3). The only special feature about the decision taken under clause (b) is that the reasons need not be communicated as held earlier and for the reasons mentioned while answering the second point.
20. Therefore, in my opinion even with clause (3) of Art. 311 scope for judicial review does exist though limited for the purpose of ensuring that the conditions imposed in clause (b) for the exercise of power is complied with and that it is not abused. In the light of these reasons, I hold -
(i) That an order imposing penalty without inquiry on the ground that it is reasonably impracticable is liable to be set aside.
(a) if no reasons are recorded, or if recorded which, as already held, need not be incorporated in the order imposing the penalty and also need not be communicated to the civil servant concerned, but are bound to be produced before the Court, are found to have no nexus to the said decision, or in other words the decision is arbitrary and capricious; and
(b) if the decision is mala fide, because bad faith vitiates all action. (See : S. Pratap Singh v. The State of Punjab : (1966)ILLJ458SC , and Ram Manohar Lohia v. State of Bihar : 1966CriLJ608 ).
(ii) That if in a given case, the material on the basis of which the decision is taken has nexus to the decision, the satisfaction of the authority is final and the Court cannot interfere with that satisfaction on the ground that in its opinion the inquiry was practicable.
21. To sum up, my conclusions on the three questions set out first are -
(i) In order that the imposition of penalty after dispensing with the inquiry into an alleged misconduct that the holding of the same is reasonably impracticable in terms of clause (b) of the second proviso in clause (2) of Art. 311 of the Constitution, the reasons must be recorded by the disciplinary authority separately and independently in respect of the said decision but they need not be incorporated either in the order imposing the penalty or communicated separately.
(ii) When a decision is taken by a disciplinary authority to impose a penalty after dispensing with the inquiry on the ground that the holding of the enquiry is impracticable under clause (b) of the second proviso to Art. 311(2) read with rule 14(ii) of the Rules, there is no obligation on the part of the disciplinary authority to issue a notice calling upon the concerned civil servant to make his representation against the proposed penalty.
(iii) An order imposing the penalty after dispensing with the enquiry on the ground that it is reasonably impracticable to be held, is open for judicial review to the limited extent of finding out as to whether -
(a) the reasons had been recorded on the basis of which decision had been taken to dispense with the enquiry;
(b) the reasons so recorded had any nexus to the dispensing with the enquiry or in other words whether the decision was arbitrary or capricious; and
(c) the order was made mala fide.
22. (1) Now I shall proceed to examine the validity of the impugned orders within the limited scope available for judicial review. The orders impugned in these eight petitions, contents of one of which is set out earlier, are stereo-typed. In the statement of objection, the respondent has stated as follows :
'It is true that the petitioners are active members of the All India Loco Running Staff Association which is a registered association. Being active members they should not have indulged in agitation in dislocating the train services. The petitioners took active part in the illegal stoppage of work resorted to by a section of Loco Running Staff in Mysore Division. They also absented themselves from duty from the dates shown in the penalty advices. They have further indulged in intimidating the other Railway workers in discharging their legitimate duties. The Divisional Railway Manager, Southern Railway, Mysore (an officer in the Inter Administrative grade) was of the opinion that the petitioners have committed acts of serious misconduct prejudicial to the working of the Railway and to the public interest. He also applied his mind with regard to holding enquiry regarding the offences committed by them. The petitioners, being active members of a militant organisation, the Divisional Railway Manager, the Disciplinary authority, was convinced that it would not be possible to hold an enquiry and giving reasonable opportunity to the petitioners to defend themselves. Added to these it was felt that it was not desirable to expose the sources of information by holding departmental enquiry. In these circumstances, the disciplinary authority had no alternative and being convinced he decided the cases of the petitioners were fit, to be dealt with under proviso (b) of Art. 311(2) of the Constitution of India. He, therefore, dispensed with the enquiry and exercised his powers under Rule 14(ii) of the Railway Servants (Discipline & Appeal) Rules 1968 and terminated their services.
The disciplinary authority formed its opinion taking into consideration the circumstances and information and other valid material before arriving at an opinion to terminate the services of the petitioners. There are sufficient and reasonable grounds for the disciplinary authority to arrive at such a decision which is free from any vice. There is neither mala fide intention nor violation of principles of natural justice in these cases on the part of the Railway Administration.'
The averments in the statement is almost a reproduction of the contents of the impugned order. Subsequently, an affidavit has been filed by the disciplinary authority. It reads -
1. It was the Divisional Railway Manager at Mysore during January-February 1981, when there was an agitation by the Loco Running Staff throughout the Indian Railways. In Mysore Railway Division, some 738 Locomen participated in the illegal stoppage of work by absenting themselves unauthorisedly from 30th January, 1981 and onwards and thus dislocated the train services in Mysore Division resulting in loss of Revenue, inconvenience to the Travelling Public, impairing the movement of goods essential for the life of the community.
2. It came to my notice, through Intelligence and other sources that the petitioners below mentioned indulged in activities preparatory and leading to illegal stoppage of work by doing active propaganda and in large scale intimidation and threatening. They also participated in the illegal stoppage of work by absenting themselves unauthorisedly on and from 30th January, 1981.
** ** **
3. As the Divisional Railway Manager Mysore it was my responsibility to act promptly with a view to prevent further deterioration in the operation of the Essential Services. Efforts made by me to collect the Railway men by persuasion did not meet with success as they deliberately kept themselves away and having been unsuccessful in the attempts at persuasion and finding that the situation was deteriorating day by day and the men were not making themselves available, I came to the conclusion that it was not reasonably practicable to conduct enquiry. I have personally recorded the note containing the reasons for the action proposed by me against the petitioners. I have recorded the note before applying R. 14(ii) of Railway Servants (Discipline & Appeal) Rules 1968 and orders were passed. Thereafter the penalty advices were issued, on the same date on which the orders were passed by me as noted below. However, the dates were omitted on the Notes by oversight.
** ** **
The original records have also been produced. As stated in the aforesaid affidavit, the order against the case of each of the petitioners is based upon the report of the same date made by the Divisional Mechanical Engineer, Mysore, against them. All the report are identically worded. Hence, it is sufficient to set out the contents of the report in the case of the first petitioner. It reads :
'From the forenoon of 30th January, 1981 he has been moving around YPR area instigating and intimidating railway staff from attending to their duties. As a result of his intimidation and instigation the running staff at YPR have unauthorisedly absented from their duty resulting in disruption and dislocation to train services.
In view of the above it is considered that his continuance in service will not be in the interest of the administration. It is also not possible to initiate action under the normal Discipline and Appeal Rules since his exact whereabouts at any time are not available. Necessary action may therefore be taken in this matter.'
While in the first para of the report it is stated that each of the petitioners was indulging in acts of intimidation and inducing the members of the staff to abstain from duty, which acts they could do only if they were present either near the railway premises or near the premises of the residence of the other workers, the Divisional Mechanical Engineer also reported in the second para that the whereabouts of the petitioners were not known. In fact the impugned orders have been served on each of the petitioners, and they have been served on each of the petitioners, and they have preferred appeals immediately thereafter. In the records there is an acknowledgment taken from one of the petitioners, Abdul Wazid, for having received the impugned order dated 31st January, 1981 on 2nd February, 1981 at 1.30 hours. In the records there is the leave application given by another petitioners T. S. Nagaraj on 25th January, 1981 requesting leave for eight days on the ground that he had to go to Secunderabad to bring his father. But the fact remains, that the reports are identically worded and that formed the basis of the order of the disciplinary authority.
23. Acting on the basis of the report, the disciplinary authority recorded its finding that the enquiry is impracticable. Again the reasons recorded as disclosed from the records of all the eight petitioners are also identically worded. Hence I shall set out the reasons recorded in the case of the first petitioner. They read :
'I have carefully gone through the report submitted by DME/MYS in his Secret Note No. Y/G Emergency 1981 dated 3rd February, 1981, regarding the activities of Shri M. F. Ansari, Driver/C/YPR. I have also received confidential report about the undesirable activities of Shri M. F. Ansari in YPR area. He is taking an active part in the organisation of the illegal stoppage of work resorted to by a section of Loco Running Staff in the Mysore Division. He has absented himself unauthorisedly from 30th January, 1981. It is also reported that he indulges in intimidating other railway workers in discharging of their legitimate duties. I am of the opinion that Shri M. F. Ansari indulges in acts of serious misconduct prejudicial to the working of the railway and to the public interest and therefore deserves severe punishment.
Shri M. F. Ansari, by his acts of serious misconduct as set above, has violated Rule 3(i) (ii) and (iii) of the Railway Servants Conduct Rules 1966 and as such he has to be removed from service.
I have applied my mind with regard to holding an enquiry on the offences committed by Shri M. F. Ansari being an active member of a militant organisation I am convinced that it will not be possible to hold the enquiry in a normal manner by framing charges, holding a departmental enquiry and giving a reasonable opportunity to Shri M. F. Ansari to defend himself. It is also not desirable to expose the source of information by holding a departmental enquiry.
Under the circumstances as detailed above I am convinced that this is a fit case to be dealt with under proviso (b) of Art. 311(2) of the Constitution and I hereby dispense with the enquiry.
Under the powers vested in me under rule 14(ii) of the Railway Servants Discipline and Appeal Rules 1968 I hereby order that Shri M. F. Ansari, be removed from service with immediate effect.
Sd/ P. M. Joseph,
Divisional Railway Manager,
Southern Railway, Mysore
In the first paragraph of each of the decisions, various acts alleged to have been indulged in by the concerned petitioner are set out. In the second paragraph the authority states that the acts so indulged in by the official amounts to serious misconduct. These facts indicate that there was a prima facie case for instituting disciplinary proceedings against the civil servants. It is in the third paragraph the reasons for dispensing with the enquiry are given. The first reason is that the petitioner concerned was an active member of a militant organisation and, therefore, it would not be practicable to hold the enquiry in a normal manner. As stated earlier, the petitioners are members of a registered trade union, which is a lawful body. The disciplinary authority has chosen to call it a militant organisation. I fail to appreciate how a registered trade union can be dubbed as a militant organisation and how membership of a registered trade union has any nexus to the dispensing with the enquiry. The next reason given is that sources of information cannot be exposed. This is a mere ipse dixit of the authority. There is nothing in the records to show that there were persons, who were witnesses to any acts of violence or intimidation said to have been indulged in by the petitioners who gave information to the Divisional Mechanical Engineer or to the Disciplinary authority about such activities and that they also told that they were afraid of giving evidence in a regular enquiry as that would have the consequence of exposing themselves to the onslaughts of the person or persons against whom they depose in the enquiry, they being rowdy elements. For instance in the case of Jyothi Prasad (Supra), in which case a Division Bench of the Calcutta High Court upheld the dispensing with the enquiry and the imposition of penalty, the reasons recorded read as follows :
'.... I am also satisfied from the report that the above named staff is in a turbulent mood and his sole object is to create a reign of terror in the minds of the innocent and loyal staff who are not willing to join the illegal strike. I have considered the question of taking suitable disciplinary action against the above named staff but in view of his turbulent mood no staff would be able to depose against him for establishing the charges in the D & A proceedings for fear of their lives and of severe bodily hurt.'
As can be seen from the above reasons, recorded in the said case, a specific statement was made to the effect that persons, who were witnesses to the violent activities of the Railway servant concerned in that case would not give evidence against him in an enquiry.
24. In the present case, there is no whisper about any such situation. The Disciplinary authority has not said that the informants if any would not come forward to give evidence in a departmental enquiry. The learned counsel for the respondents was unable to say as to what was the source of information which the authority considered that it should not be exposed. Thus the only factual basis for dispensing with the enquiry by the disciplinary authority was that the petitioners were members of a trade union, which has no nexus to the dispensing with the enquiry. Therefore, I have absolutely no hesitation to hold that the so called reasons recorded by the competent authority cannot be regarded as reasons at all or at any rate, had absolutely no nexus to the dispensing with the enquiry and no person excercising the power conferred under clause (b) of the second proviso to Art. 311(2) reasonably could say that the situation was such as would render the holding of an enquiry impracticable against each one of the petitioners. All that can be said is that the allegations furnished a prima facie basis for holding an enquiry, but there was no reason at all for dispensing with the enquiry.
25. (1) Learned counsel for the respondents, however, submitted that atleast in two cases, namely, in the case of Nagaraj and in the case of M. F. Ansari, there were materials to hold that the decision of the Disciplinary authority to the effect that the holding of the enquiry was reasonably impracticable was valid. Additional files in relation to these two persons were produced.
(2) In the file relating to Nagaraj, there is a complaint given by one V. Nagarajan that T. S. Nagaraj and V. Mahadevaiah were obstructing him while he was working and some other miscreants had gone near his house to intimidate him. In that letter he requested for providing security near his house. There is no statement made to the effect that if a disciplinary enquiry was held against the delinquents, he was afraid of giving evidence. A statement found in the records disclose that on the basis of the said allegation FIR is lodged against Mahadevaiah, who is retained in service. Nagaraj has been removed from service. As far as Ansari is concerned, the additional record produced shows that a criminal case was filed done the allegations levelled against him which constitutes no basis for dispensing with the enquiry and to impose the penalty. Moreover no such reasons are given in the decisions relating to these two officials. The decision in all the eight cases is identically worded. Thus the additional material produced even in respect of the two persons, in my opinion, does not improve the case of the respondents in respect of these two petitioners also.
26. The petitioners have also alleged that the action was mala fide and was by way of victimisation. Learned counsel for the respondents submitted that a tense atmosphere had been created during that period, and the authority acted bona fide to protect the interests of the Railways. There is absolutely no basis to doubt the bona fides of the respondents. All that can be said is that the authorities over reacted to the situation, in that, instead of exercising the normal power to place the employees against whom there were allegations under suspension and holding the enquiry, they resorted to exercise the extraordinary power without there being a basis to do so. In fact, the learned counsel for the petitioners fairly and rightly did not pursue the point.
27, In the result, I hold that in the case of each of the petitioners, the so called reasons recorded by the Disciplinary authority to dispense with the enquiry have no nexus to the dispensing with the enquiry and therefore the decision was arbitrary and capricious and consequently the orders imposing penalty are liable to be quashed.
28. For the reasons aforesaid, I make the following order :
(i) Rule made absolute.
(ii) The order imposing penalty of dismissal from service impugned in each of these petitions and the corresponding appellate and revisional orders are quashed. Each of the petitioners shall be entitled to all the benefits flowing from the quashing of the impugned orders.
(iii) The respondents shall be at liberty, if they so desire, to hold a regular enquiry into the misconduct alleged against the petitioners, in accordance with law.
(iv) No costs.
29. Immediately after I pronounced order in the above petitions, the learned counsel for the respondents made an application under Art. 134-A of the Constitution praying for the grant of certificate to appeal to the Supreme Court against the order, under Art. 132(1) of the Constitution.
30. In the petitions the three important questions of law set out in the first paragraph of the order arose for consideration. I have answered the first two questions, against the petitioners and the third in their favour and against the respondents. Thus the order involves a substantial question of law relating to the interpretation of a provision of the Constitution, i.e., Art. 311. Hence the certificate prayed for has to be granted under Art 132(1). Issue certificate as prayed for.