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Union of India (Uoi) Vs. Onkar Singh Johari - Court Judgment

LegalCrystal Citation
SubjectConstitution;Service
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 1506 of 1969
Judge
Reported inAIR1971All246; [1971(21)FLR261]
ActsConstitution of India - Article 311; Railways Establishment Code Staff Rules - Rules 1704, 1706 and 1708
AppellantUnion of India (Uoi)
RespondentOnkar Singh Johari
Advocates:Lalji Sinha, Adv.
DispositionAppeal allowed
Excerpt:
constitution - service - article 311 of constitution of india - power of district traffic superintendent - can appoint ticket collector in railways. - - the well recognised rule is that the appointing authority can dismiss the employee in the absence of any statutory provision to the contrary. if the intention of the authorities was that for inflicting the penalty of removal in case of item 2 of rule 1708 the competent authority was the authority which could pass the order of dismissal, there was no reason why another clause like clause (c) was not add-ed in respect of item 2 in rule 1709. if the arguments of the learned counsel for the plaintiff-respondent were to be accepted, it will go to mean that rule 1707 would stand transplanted along with the authority mentioned therein in rule..........from service are two distinct penalties enumerated in sub-clauses (7) and (8) of the said rule. rule 1703 states the consequences of the two penalties. it says that dismissal from service shall disqualify the railway servant from future employment but removal from service is not an absolute disqualification. rule 1704 deals with the authority competent to impose penalty and is as follows:'subject to the provisions of rule 1705, (i) the authorities specified in column 3 of schedule 1 appended to the rules in this chapter may impose the penalties specified in col. 4 upon the classes of railway servants shown in col. 2 of that schedule; (ii) the general manager in respect of railway servants under his administrative control, may impose any of the penalties specified in rule 1702.....
Judgment:

J.S. Trivedi, J.

1. The plaintiff respondent was a Travelling Ticket Examiner in the North Eastern Railway and on 11-8-59 he was working as such on the 39 Up Passenger between Pilibhit and Shahjahanpur. The said train was raided by the Magisterial Checking Squad. One of the first class compartments of the said train was found bolted from inside. After the said compartment was opened the plaintiff was found asleep in the said compartment. Besides him two others passengers who were travelling without ticket in the same compartment were produced before the Magistrate and during their trial it was disclosed that they were travelling with the permission of the plaintiff-respondent. The District Traffic Superintendent ordered an enquiry against the plaintiff-respondent. One Shri H. R. Bhagga, the then Assistant Traffic Superintendent Izatnagar, was appointed the enquiring officer. Sri Bhagga found the charges of serious misconduct established against the plaintiff. He submitted the result of his enquiry to the District Traffic Superintendent who agreed with the findings and gave a show cause notice proposing the penalty of removal from service and finally ordered his removal. The plaintiff respondent, after necessary notice under Section 80, Civil P. C., filed the suit out of which this appeal has arisen. It was contended by the plaintiff that the District Traffic Superintendent was not competent to award the punishment of removal from service. The trial court decreed theplaintiff's suit and the decree of the trial court was confirmed by the lower appellate court. According to the findings of the court below the District Traffic Superintendent was neither empowered to charge-sheet the appellant nor was he empowered to order an enquiry and award the punishment of removal from service.

2. The reasoning of the courts below is that the plaintiff was charged with an offence the maximum penalty for which was dismissal and therefore the General Manager alone was competent to remove him from service.

3. The plaintiff had also challenged that the District Traffic Superintendent was not the appointing authority but his contention was repelled by both the courts. The findings of the two courts that the District Traffic Superintendent was the appointing authority is also challenged by the plaintiff in this appeal. Before the other contention of the appellant is considered it is desirable to examine if the District Traffic Superintendent was the appointing authority or not. The appointment letter, Ext. 8, is from the District Traffic Superintendent and is addressed to the Station Master, Gola. It is in these words:

'Subject to Traffic Manager's approval, the abovenamed is appointed as Ticket Collector at yours on Rs. 30 plus Rs. 10 as W/A per month from 16-7-45, vice S. C. Banerji transferred to LJN as APC. His services are liable to be terminated without any notice owing to war embargo on permanent recruitment.'

The learned counsel for the plaintiff respondent has contended that the appointment being subject to the approval of the Traffic Manager, the appointing authority was the Traffic Manager and not the District Traffic Superintendent. It is also contended by him that this letter was only a letter of posting and not an appointment letter. He contended that the appointment letter was some other letter issued by the Traffic Manager. Under issue No. 1, the trial court has discussed the case of the plaintiff on this point. It is not necessary for me to repeat the reasons given by the trial court in holding that the District Traffic Superintendent was the appointing authority. I fully agree with the finding of the trial court.

4. The next question for determination is whether the order of the removal passed by the District Traffic Superintendent was an order of a competent authority or not. The well recognised rule is that the appointing authority can dismiss the employee in the absence of any statutory provision to the contrary. The Indian Railway Establishment Code, Chapter XVII, deals with Discipline and Appeal Rules (Non-gazetted) Staff. Rule 1702 enumerates the penalties that may be imposed on railway servants. Removal from service and dismissal from service are two distinct penalties enumerated in Sub-clauses (7) and (8) of the said rule. Rule 1703 states the consequences of the two penalties. It says that dismissal from service shall disqualify the railway servant from future employment but removal from service is not an absolute disqualification. Rule 1704 deals with the authority competent to impose penalty and is as follows:

'Subject to the provisions of Rule 1705, (i) the authorities specified in Column 3 of Schedule 1 appended to the rules in this Chapter may impose the penalties specified in Col. 4 upon the classes of railway servants shown in Col. 2 of that schedule;

(ii) The General Manager in respect of railway servants under his administrative control, may impose any of the penalties specified in Rule 1702 and may, subject to any conditions he may consider necessary, delegate to the authorities subordinate to him power to impose these penalties except the withholding of provident fund contribution and gratuity and the reduction or withholding of pension subject to the following provisos:-- (a) that in respect of railway servants, other than inferior servants with less than seven years' service, the power of dismissal shall not be delegated to an authority lower than a Head of a Department or a Divisional Superintendent or, in relation to the North Western Railway a Deputy General Manager; and the power of removal from service shall not be delegated to an authority lower than a District Officer provided that in case of incivility to the public to be dealt with under Rule 1709 (c), the power of removal from service shall not be delegated to officers below the rank of those specified in that rule, and (b) that the power of dismissal of inferior servants with less than seven years' service shall not be delegated to an authority lower than a District Officer and the power of removal from service shall not be delegated to an authority other than the holder of a gazetted post.'

Rule 1705 is as under:--

'Notwithstanding anything contained in the rules in this section.

(a) a fine shall not be imposed upon railway servants who are exclusively employed on clerical work;

(b) the penalty specified in item (4) of Rule 1702, viz. withholding of increments or promotion, or stoppage at an efficiency bar, shall not be imposed by an authority lower than a Divisional Superintendent or the authority competent to make a substantive appointment to the post which the railway servant holds;

(c) no railway servant shall be removed or dismissed by an authority lower than that by which he was appointed to the post held by him sub-

stantively;

(d) pension admissible to an upper subordinate, in the Engineering Department shall not be reduced or withheld by an authority lower than the Railway Board.'

5. Rule 1706 enumerates the grounds on which a railway servant may be dismissed and serious misconduct is one of them. Rule 1707 gives the procedure for dismissal and Rule 1708 enumerates the grounds on which the railway servant may be removed from service. Rule 1709 prescribes the procedure for removal.

6. It is not disputed that the plaintiff respondent was an employee of more than seven years' service. It is also not disputed that if the charge against the plaintiff respondent was not serious misconduct for which the maximum penalty was dismissal, the District Traffic Superintendent could order removal from service. Before entering into the question of procedure, it is desirable to examine first the Rules 1704 and 1705. Under Rule 1704 the General Manager is competent to impose various penalties specified in Rule 1702. He is also authorised to delegate to an authority subordinate to him the power to impose some of these penalties. Clause (ii) fa) of this rule lays down that the power of dismissal in respect of a railway servant of more than seven years' service cannot be delegated to an authority lower than a head of department or District Superintendent and the power of removal from a service cannot be delegated to a authority lower than a district officer. Rule 1705 is a further restriction on the general power given in Rule 1704 and under Rule 1705 the authority competent to impose penalty cannot be lower in rank than by which an employee was appointed. It also makes a provision in respect of items (4) and (11) of Rule 1702. Under Clause (b) of Rule 1705, the penalty specified in item f4) of Rule 1702, i. e. withholding of increments, etc., cannot be imposed by an authority lower than a Divisional Superintendent and under Clause (d) the pension admissible to an upper subordinate in the Engineering Department shall not be reduced or withheld by an authority lower than the Railway Board. Appendix 3 to subsidiary Rule 1, is the schedule of powers delegated by the General Manager in exercise of authority conferred under Rule 1704. The official authorised to impose penalties in case of staff in scales rising not beyond Rs. 225 is the District Officer, who is the same as the District Traffic Superinten-dent in this case. Therefore under Rule 1704 the authority to impose the penalty of removal is the District Traffic Superintendent in case he was the appointing authority.

7. Rule 1709, which is headed, as 'procedure for removal' is as under:

'(a) Subject to the provisions of Clause (c) below, when a railway servant who has completed seven years' continuous service is charged with an offence meriting removal from service under Rule 1708, the procedure outlined in Rule 1707 shall be applied; provided that the officer competent to pass the order of discharge may dispense with the departmental inquiry and make an enquiry in any manner deemed proper by him, recording his considered opinion before passing the order of discharge. Where a departmental inquiry is dispensed with and if, thereafter, the railway servant asks to be heard in person, the officer competent to pass the order of discharge shall grant the railway servant a personal interview at which the former may be accompanied by another railway servant.

'(b) Where the railway servant whom it is proposed to remove from service has not completed seven years' service the procedure prescribed in Rule 1712 shall be applied.

'(c) In cases of incivility to the public. principal officers or heads of departments. Divisional Superintendents, Deputy General Manager and Deputy Heads of Departments have authority to order removal of a non-gazetted railway servant from the service after application of the procedure prescribed in Rule 1712. irrespective of the length of service of the railway servant concerned.'

A mere reading of this rule would show that the authority to order removal in case of incivility to public is specifically provided in Clause (c) of Rule 1709. While therefore Rule 1709 prescribes the procedure for removal it also provides an authority to impose penalty for incivility to public. The authorities to impose penalty of removal in respect of items 1 to 4 enumerated in Rule 1703 are not expresslv provided in Rule 1709 and all that Rule 1709 provides is that the procedure outlined in Rule 1707 shall be applied. No grievance was made by the plaintiff about non-compliance of procedure. Rule 1707 cannot therefore be looked into for any purpose other than the procedure provided in the rule. If the intention of the authorities was that for inflicting the penalty of removal in case of item 2 of Rule 1708 the competent authority was the authority which could pass the order of dismissal, there was no reason why another clause like Clause (c) was not add-ed in respect of item 2 in Rule 1709. If the arguments of the learned counsel for the plaintiff-respondent were to be accepted, it will go to mean that Rule 1707 would stand transplanted along with the authority mentioned therein in Rule 1709 and the delegation of power to the authority envisaged in Rules 1704 and 1705 shall be invalid.

8. The learned counsel for the appellant has placed reliance on K. C. Dutta v. District Traffic Superintendent AIR 1957 Pat 676 which lays down that:

'The railway administration hab made a distinction between dismissal from service and removal from service. The circumstances in which a railway servant shall be liable to be dismissed from the service are set forth in Rule 1706 and those justifying removal are enumerated in Rule 1708. 'Serious misconduct' comes under Rule 1706 and entails dismissal from the service. The penalty of removal from the service as envisaged in Rule 1708 is imposed in respect of offences which are less serious than those laid down in Rule 1706 for dismissal.

'But if a person for being guilty of serious misconduct for which the prescribed punishment is dismissal from the service is simply removed from the service, it cannot be reasonably said that there wag violation of the statutory rule 1708. The imposition of a lesser punishment in respect of an offence for which a higher punishment is prescribed is not at all illegal.'

To the same effect are the observations in Ganga Prasad v. Union of India AIR 1955 Pat 305.

9. The lower appellate Court was therefore wrong in holding that the District Traffic Superintendent not being the authority competent to dismiss the plaintiff respondent, was not competent to order his removal.

10. For the reasons given above, this appeal is allowed. The suit of the plaintiff respondent shall stand dismissed. Costs will be on the parties.


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