1. In this application under Article 226 of the Constitution of India, the validity of the order of removal of the petitioner from railway service by the General Manager made on 9-11-1965 is challenged. The petitioner was originally appointed in 1939 as Shed Coolie. He underwent a training a five years to qualify himself to be appointed as Train Examiner. After the completion of that training, he was appointed as Train Examiner in 1945. He was working in that capacity at Waltair on 27-3-1962. On that date, two trains 1775 and 1779 reached Waltair station. The duty of the Neutral Train Examiner was to check the wagons and mark them so that repairs in regard to them as stated by him may be carried out. These repairs have to be carried out by the Train Examiner. It is alleged that on 27-3-1962 the trains reached Waltair Station at 4.30 p.m. The Neutral Train Examiner, who was also working that day, wanted the Train Examiner to carry out the repairs for another one hour so that he may complete his duty by that time. The Train Examiner seems to have refused to oblige him. Rival contentions thereafter started.
While it was contended by the Neutral Train Examiner that he had marked some wagons. but the petitioner did not carry out the repairs, the Neutral Train Examiner made a complaint against the petitioner to the Head Train Examiner on whose complaint the petitioner was put under suspension on 28-3-1962. The District Mechanical Engineer framed charges against the petitioner on 4-4-1962, They were served upon the petitioner who was called upon to submit his explanation to the notice calling upon the petitioner as to why he should not be removed from service. The petitioner accordingly submitted his explanation thought that the explanation was not satisfactory. The petitioner therefore was called upon by him on 27-4-1962 to give a list of witnesses. He also mentioned therein that some Assistant Officer would hold the enquiry. In response to this notice the petitioner submitted a list of witnesses on 8-5-1962 in which he mentioned the name of Sri S. Sankaran Assistant Mechanical Engineer, as his first witness.
2. The enquiry went on from 15-5-1962 to 3-3-1963. This enquiry was conducted by the same Sri S. Sankaran, Assistant Mechanical Engineer, who was cited as a witness by the petitioner. The petitioner however did not raise any objection before him contending that he wanted to cite him as a witness and therefore he should not conduct the enquiry. On the completion of the enquiry, Mr. Sankaran submitted a report on 16-7-1964. This report was submitted by the Enquiry Officer to the General Manager as he was the authority to remove the petitioner from service. The petitioner was an ex-employee of the B. N. Railway Co., which was subsequently merged in the Indian Railways. The General Manager was of the opinion that the petitioner was guilty of the charges levelled against him. Evidently he did not agree with the report of the Enquiry Officer.
He therefore served the petitioner with a notice on 14-7-1965 to show cause as to why he should not be removed from service on the two charges mentioned therein which in his opinion, had been found to have been proved. The petitioner submitted his explanation on 9-9-1965 and further supplemented it by another explanation on 18-10-1965. The General Manager finally passed an order on 8-11-1965 which removed the petitioner from service. This order of removal was communicated by the Deputy Chief Personnel Officer. South Eastern Railway to the petitioner on 25-11-1965. It is this order that is now impugned in this writ petition.
3. Mr. C. Poorniah, the learned counsel for the petitioner, raised before me three contentions. It was firstly argued that the District mechanical Engineer who framed the charges and appointed the Enquiry Officer, was not competent to initiate the proceedings, frame charges or appoint any Enquiry Officer. The argument is that since the petitioner is an ex-employee of B. N. Railway Co., he could be removed only by the General Manager and the charges should be framed in view of the delegation made by the General Manager to the heads of the Departments by the Head of the Department. It is the Head of the Department that could not only frame the charges but either conduct the enquiry himself or direct any other officer to conduct the enquiry and submit a report. In support of this contention, reliance was placed upon page 5 of the South-Eastern Railway's Pamphlet issued on 11-10-1957 dealing with the procedure for conducting enquiries into the conduct of Non-Gazetted Railway Employees, Paragraph 12 at page 5 is as follows;
'Special Instructions for removal or compulsory retirement or dismissal of B. N. Railway Co. Staff:- The position of B. N. Railway Company staff is different from State Railway staff inasmuch as they were all deemed to have been appointed by the General Manager and as such, their removal or compulsory retirement, or dismissal from service can only be ordered by the General Manager, vide Railway Board's letter No. E45RG6/2/2 dated 15-2-48 reproduced as Appendix 'A' In all cases of Ex. B. N. Railway Company's Staff, when the charges are sufficiently grave to indicate that the penalty likely to be imposed is that of dismissal or removal or compulsory retirement, a formal departmental enquiry should be held in accordance with the rules in this section. The Heads of Departments should order the enquiry in such cases; vide D. G. M. (P)'s Circular No. B/Ruling/6669 dated 25-2-57 (Estt. Serial No. 63/57) reproduced as Appendix 'A'
In cases of reduction , however the enquiry can be ordered by the authority competent to impose the penalty.'
In Appendix 'A' referred to in the said paragraph which is printed at pages 22 and 23 of the same pamphlet, it is stated:
'Clause (c) of Para 1707-R. I lays down that the authority competent to impose the penalty shall cause a departmental enquiry to be held.
2. Accordingly, the General Manager hereby authorises the Head of Departments to order enquiries and nominate a single officer or appoint a committee, in cases of Ex B. N.. Railway Company staff against whom charge-sheet have been served for removal/ dismissal from service'.
4. In so far as these instructions are concerned, contained in above- said letters, it can hardly be doubted that they make special provisions in regard to Ex- B. N. Railway Co., employees in so far as the disciplinary proceedings are concerned. It is not in doubt that the Ex B. N. Railway Co., employees are presumed to have been appointed by the General Manager. When the General Manager is the appointing authority in cases of removal or dismissal, these letters concede that it is the General Manager who would be the authority that can pass an order or removal or dismissal. These instructions however say it is not necessary for the appointing or dismissing authority to conduct the enquiry, under the delegation, the power to conduct the enquiry is entrusted to the Head of the Department in case of disciplinary proceedings against Ex B. N. Railway Co. staff.
5. It is however, contended by Mr. Srivastava, the learned counsel for the Railways, that these instructions are not applicable to the petitioners case because in the rules now printed in a book issued on 1-8-1961, Rule 1702, which is applicable to all the railway servants including those of Ex- B. N. Railway, enjoys that while the authority which can remove or dismiss a non-gazetted officer of the petitioner's character would be the General Manager, the enquiry can be made by any competent officer who can impose any one of the penalties mentioned in Rule 1707.
6. It is true that Rule 1702 gives the definitions of the appointing authority and the disciplinary authority. In so far as the Appointing Authority is concerned, there is no dispute as it is common ground that it is the General Manager who is the appointing authority in the present case. The definition of 'Disciplinary Authority' in so far as it is relevant for our purposes, is as follows:
'Disciplinary Authority' in relation to the procedure for imposition of penalty on a Railway Servant means, the Authority competent to impose on him that penalty. provided that for imposing penalties of compulsory retirement, removal or dismissal that authority shall be the 'Appointing Authority'
Provided for that-
(a) 'Disciplinary Authority' in relation to the issue of charge sheets etc. under Rule 1709 to 1712 and issue of charge sheets under Rule 1716 means, so far as cases of Gazetted Officer are concerned, any authority competent to impose any of the penalties specified in Rule 1707.
(b) 'Disciplinary Authority' in relation to the issue of charge sheets under Rules 1709 and 1716 and permission to inspect official records under Rule 1711 in respect of non-gazetted staff means, any authority competent to impose any of the penalties specified in Rules 1707'.
7. It is upon this rule that reliance is placed and it is contended that while the order or removal may be passed by appointing authority, which means in this case the General Manager the Rule permits the charge sheets to be framed and enquiries to be conducted in respect of non-gazetted staff by any authority competent to impose any of the penalties specified in Rule in 1707. Rule 1707 gives the punishments which could be inflicted. From the schedule to the Rules it is evident that Senior Scale Officer is one such officers who is competent to impose some of the penalties mentioned in Rule 1707. These senior Scale Officers include Class I and II officers of the Railways. The District Mechanical Engineer being a Class I officer would come within the purview of the senior Scale Officer mentioned in the Schedule. He is therefore, one of the officers who can impose any punishment under Rule 1707. In the case of a non-gazette member of the Railway Staff, it is true that while the appointing authority can impose the punishment of removal or dismissal, the charge-sheet can be framed and the enquiry conducted by any officer who is competent to inflict the penalty mentioned in Rule 1707. If the petitioner was not a member of the Ex- B. N. Railway Co., the argument of the learned advocate appearing for the Railways would , in my view, be flawless. But the question is whether the instructions mentioned above have been abrogated by the Rules mentioned above which were in force from 1-8-1961, and the book from which I am citing contains the Rules corrected upto 31-7-1966. The learned advocate for the Railway could not bring to my notice any provision or instructions whereby the special provisions made for the Ex- B. N. Railway Co., employees have been abrogated.
As long as those instructions stand, it is the General Manager who can inflict the final penalty of removal or dismissal by the enquiry could be conducted only by the Head of the Department. Admittedly, the District Mechanical Engineer is not a Head of the Department The term 'Head of the Department' has a significant meaning and that term admittedly does not include the District Mechanical Engineer. As long as those special provisions, which are applicable to Ex. B. N. Railway Co., employees are not repealed or abrogated, they are entitled to be hard by the Head of the Department although the final order of removal or dismissal can be passed only by the General Manager. Those special provisions must override the general Rule 1703. It is not contended before me that these instructions have no force of law.
If those instructions stand at par with Rule 1702, the special provisions must override the general provisions. In other words, the general provisions must give way to the special provisions applicable to the present case. That this position is true is not disputed. When once that is conceded, then it is under the special rule that the petitioner's case ought to have been enquired into by the Head of the Department. Since the charges were framed by a person, who was not competent to frame charges or appoint the enquiry officer, the entire proceedings, in my view, are vitiated. It may be that the final order was passed by the General Manager, but since it is based upon an enquiry made by a incompetent person, the order also suffers from the infirmity.
8. That apart, it is not disputed that the charge sheet issued by the District Mechanical Engineer and served upon the petitioner clearly indicates that the proposed punishment was removal. The second notice given to the petitioner also mentioned that the proposed punishment was removal. In so far as the second notice is concerned , no objection can be taken because that is the stage where the punishment proposed has to be necessarily mentioned in order to facilitate the petitioner to give his explanation if he wants to say anything in regard to the punishment. It is, however, objectionable to mention as to what punishment is proposed in the very first notice. The officer issuing that notice would be deemed to have already made up his mine in regard to the punishment. IN a series of decisions, this court has held that if the first notice mentions the proposed punishment, it amounts to prejudging the issue, and the proceedings taken thereafter would be deemed to have been vitiated because of that infirmity. See. R. Suryanarayana v. State of Andhra Pradesh (1967) 2 Andh WR 253. I am bound by that Bench Decision. It is not therefore considered necessary to refer to the cases of Madhya Pradesh and Calcutta High Courts cited by the learned advocate for the railways. The Madhya Pradesh case was considered by Krishna Rao. J. sitting singly in second Appeal No. 282 of 1965, dated 23-1-1968 (AP). The learned Judge followed the Bench decision referred to above.
9. The final contention of Mr. C. Poorniah, the learned advocate for the petitioner, was that Sri S. Sankaran ought not to have been appointed as the Enquiry Officer because he was cited as a witness by the petitioner. It may be that the petitioner had cited him as a witness. But when he was appointed as the Enquiry Officer, the petitioner did not raise any disputed nor objection to his appointment. In fact Sri Sankaran's report goes tin favour of the petitioner. No such objection was taken even before the General Manager. I do not therefore think that merely because Sri Sankaran was cited as a witness by the petitioner, it would disqualify Sri Sankaran from conducting the enquiry, particularly when the petitioner had not raised any objection in that behalf. I do not therefore find any substance in this contention.
10. For the reasons which I have given, the order must be quashed. I would therefore allow the writ petition and quash the order. The petitioner will have his costs. Advocate's fee is Rs. 100.
11. Petition allowed.