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

LegalCrystal Citation
SubjectService;Constitution
CourtMadhya Pradesh High Court
Decided On
Case NumberSecond Appeal No. 348 of 1961
Judge
Reported inAIR1962MP372; [1963(6)FLR61]; (1963)ILLJ792MP; 1962MPLJ717
ActsConstitution of India - Articles 310, 311 and 311(2)
AppellantRameshwar Singh
RespondentUnion of India (Uoi)
Appellant AdvocateR.S. Dabir, Adv.
Respondent AdvocateJ.N. Sinha, Adv.
DispositionAppeals dismissed
Cases Referred(Manak Lal v. Dr. Prem Chand
Excerpt:
.....ground of proved misbehaviour or incapacity. these are clearly exceptions to the rule embodied in article 310(1), that public servants hold their office duringthe pleasure of the president or the governor, as thecase may be. though the two qualifications are set outin a separate article, they quite clearly restrict theoperation of the rule embodied in article 310(1). in otherwords, the provisions of article 311 operate as a provisoto article 310(1).'(p. objection is generally deemed to have been waived, if the party or his legal representative knew of the disqualification and acquiesced in the proceedings by failing to take objection at the earliest possible opportunity'.(judicial review, pages 162-63) shri daphtary does not seriously contest the position that the objection could have..........in the course or their duties, they were utilized at times to perform the work of coupling and uncoupling of wagons. their grievance was that this work of coupling and uncoupling of wagons was not a part of their duty and that, whenever they were required to do that work, they should have been paid acting allowance. on 16 march 1957, they interviewed the district operating superintendent and conveyed to him, inter, alia, this grievance. on the same day, they were suspended at the instance of the district operating superintendent. soon afterwards, each was served with a charge-sheet requiring him to answer the following charge: 'on 16-3-57 while you were on duty in the 17 to 1 hrs. shoft, you were deputed to perform the duties of coupling and uncoupling of wagons which you flatly.....
Judgment:

K.L. Pandey, J.

1. This is a plaintiff's appeal against a reversing decree of the lower appeal Court by which his suit for declaration that his removal from service by an order dated 8 August 1957 is void and that, notwithstanding that order, he continues to hold the post of a Traffic Pointsman was dismissed. This judgment will also dispose of Second Appeal No. 347 of 1961, which is directed against a similar reversing decree of the lower appeal Court in a like suit filed in identical circumstances by one Badriprasati.

2. At the material time, Rameshwar Singh and Badriprasad were employed as confirmed Traffic Pointsman and served in the station yard at Bilaspur. In the course or their duties, they were utilized at times to perform the work of coupling and uncoupling of wagons. Their grievance was that this work of coupling and uncoupling of wagons was not a part of their duty and that, whenever they were required to do that work, they should have been paid acting allowance. On 16 March 1957, they interviewed the District Operating Superintendent and conveyed to him, inter, alia, this grievance. On the same day, they were suspended at the instance of the District Operating Superintendent. Soon afterwards, each was served with a charge-sheet requiring him to answer the following charge:

'On 16-3-57 while you were on duty in the 17 to 1 hrs. shoft, you were deputed to perform the duties of coupling and uncoupling of wagons which you flatly refused to do. On receipt of such report, the D. 0. S. Bilaspur personally came to the station where he met you and explained to you that this forms one of your fundamental duties and that refusal of orders would mean serious action. In spite of that, you still refused to carry out the duties of coupling and uncoupling of wagons in violation of Standing Order No. 34 of Ex. B. N. Railway Gazette No. 9 dated 2-3-49. Your refusal to perform these duties resulted in serious repercussion to goods train operation in Bilaspur yard.'

After Rameshwar Singh and Badriprasad submitted their written explanations, a committee of enquiry held a regular departmental enquiry, examined witnesses and submitted its report to the effect that they were guilty ot 'refusal of duty'. Having read the explanations and the 'report of the enquiry committee, the Divisional Operating Superintendent served upon each a notice dated 13 June 1957 intimating, in the usual way, his conclusion that the charge was proved and his provisional opinion that he proposed to remove the delinquent employee from service and further requiring each to show cause why the proposed punishment should not be inflicted on him, A copy of the report of enquiry was given to each along with the show cause notice and he was informed that any representation he wished to make would be taken into consideration before passing the final order, In pursuance of these notices, Rameshwar Singh and Badriprasad submitted their representations dated 22 July 1957 and thereupon the impugned orders dated 8 August 1957 were passed.

3. Rameshwar Singh and Badriprasad based their claims on the following grounds:

(i) They had no proper notice of the allegations against them.

(ii) They were not given a reasonable opportunity of showing cause.

(iii) There was no just and proper enquiry.

(iv) They could be removed only by the General Manager.

(v) The principles of natural justice were not observed in that they were not given a hearing before tneir appeals were dismissed.

(vi) Their removal from service was wrong and without justification for the reason that the work of coupling and uncoupling, of wagons was not a part of their duty and it could not be found that they had retused to perform their duties.

4. The Court of first instance decreed the two claims on the view that (1) the work of coupling and uncoupling of wagons was not a part of the legitimate duty of a Traffic Pointsman; (2) only one show cause notice was given and (3) Rameshwar Singh and Badriprasad, being members of the ex-Company staff, could be removed from service only by the General Manager. The lower appeal Court took a contrary view and dismissed the two suits.

5. The first point raised in these appeals is that the work of coupling and uncoupling of wagons was not one of the duties of a Traffic Pointsman and that, when Rameshwar Singh and Badriprasad declined to do that work, it could not be said that they refused to carry out their legitimate duties. I am of opinion that thess questions cannot be relied upon in a civil suit filed by a Union or State civil servant against his removal from service. As provided by Article 310 of the Constitution, such servants hold office during the pleasure of the President or the Governor, as the case may be. This plea'sure is subject only to the restrictions imposed by Article 311(2) of the Constitution: Parshotam Lal Dhingra v. Union of India, 1958 SCR 828: (AIR 1958 SC 36) and Khem Chand v, Union of India, 1958 SCR 1080: (AIR I9ba SC 300). In the first case, their Lordships observed:

'To summarise: As under Section 96B(1) of the 1915 Act and Section 240(1) of the 1935 Act, the persons specified therein held office during the pleasure of the Crown, so under Article 310(1) they hold their office during the pleasure of the President or of the Governor, as this case may be. The opening words of Article 310(1), namely, 'Except as expressly provided by this Constitution', reproduce the opening words of Section 240(1) of the 1035 Act, substituting the word 'Constitution' for the word 'Act'. The exceptions contemplated by the opening words of Article 310(1) quite clearly refer, inter alia, to Articles 124, 148, 218 and 324 which respectively provide expressly that the supreme Court Judges, the Auditor-General, the High Court Judges and the Chief Election Commissioner shall not be removed from his office except by an order of the President passed after an address by each House of Parliament, supported by the requisite majority therein specified has been presented to him in the same session for such removal on the ground of proved misbehaviour or incapacity. These are clearly exceptions to the rule embodied in Article 310(1), that public servants hold their office duringthe pleasure of the President or the Governor, as thecase may be. Subject to these exceptions our Constitution,by Article 310(1), has adopted the English Common law rulethat public servants hold office during the pleasure ofthe President or Governor, as the case may be and has, byArticle 311, imposed two qualifications on the exercise ofsuch pleasure. Though the two qualifications are set outin a separate article, they quite clearly restrict theoperation of the rule embodied in Article 310(1). In otherwords, the provisions of Article 311 operate as a provisoto Article 310(1).' (P. 839 (of SCR): (p. 41 of AIR).

In the second case, they stated:

'Article 310(1) no doubt provides that every person falling within it holds office during the pleasure of the President or the Governor, as the case may be the language of both Clauses (1) and (2) of Article 311 is prohibitory in form and was held by the Judicial Committee in High Commissioner' for India v. I. M. Lal, 75 Ind App 225 at p. 241: (AIR 1948 PC 121 at p. 126) to be inconsistent with their being 'merely permissive and consequently those provisions have to be read as qualifications or provisos to Article 310(1) as has been held by the Judicial Committee in that case and recently by this Court in 1958 SCR 828:(AIR 1958 SC 36) in a judgment pronounced on November1, 1957. The limitations thus imposed on the exerciseqf the pleasure of the President or the Governor in thematter of the dismissal, removal or reduction in rank atgovernment servants constitute the measure of the constitutional protection afforded to the government servantsby Article 311(2).' (P. 1089 (of SCR). (p. 304 of AIR)

The position is that once the procedure under Article311(2) has been complied with, the Courts are not entitledto determine whether the ground or charge upon whichthe authorities have proceeded against a civil servant isfactually correct or sufficient to warrant the action takenagainst him. To proceed to determine such questions andto take, on these matters, a view contrary to the viewtaken by the authorities amounts in effect to interferingwith, or putting a clog upon, the power to dismiss or re-move such servant at pleasure, which, as already indicated, is subject only to the restrictions imposed by Article 311. So, the Privy Council held in R. T. Rangachari v,(Secy, of State, 64 Ind App 40: (AIR 1937 PC 27) that acivil servant had no right to enforce the rules madeunder Section 96B of the Government of India Act, 1919,and also took the view in R. Venkata Rao v. Secy, ofState, 64 Ind App 55: (AIR 1937 PC 31) that the remedyof a civil servant aggrieved did not lie by a suit in Courtbut by way of an appeal of official kind. These principles relating to pleasure tenure accepted by the Judicial Committee still govern civil servants and, subject only to the protection afforded by Article 311, a civil servant who has been dismissed or removed from service, can have no justifiable cause for relief in a Court of law.

6. Another ground raised but not pressed is that there was no proper enquiry and the protection conferred by Article 311 was denied to Rameshwar Singh and Badriprasad. In this connexion, it was stated that tho second show cau'se notice was not given to them. As I have shown in paragraph 2 above, there was a careful enquiry and not only the usual procedure was duly followed, but the second show cause notice was also given to each. There is, therefore, no factual basis for the contention that the railway servants did not have a reasonable opportunity of showing cause against the action proposed to be taken in regard to them.

7. The only other ground urged in support of these appeals is that, since the two railway servants had refused to do the work of coupling and uncoupling of wagons in the presence of the District Operating Superintendent, who had thereupon directed that they be suspended and a departmental enquiry be held against them, he became disqualified for dealing with the matter and, when he did so as the authority competent to punish them, he disregarded the rules of natural justice in that he became a Judge in his own cause: Nemo Debet Esse Judex In Causa Propria Sua. To this contention, there are several obvious answers. In the first place, the requirements of natural justice vary with differing situations and varying constitution of tribunals dealing with the matters committed to their authority and the question whether any rule of ''natural justice has been contravened in a particular case should not be decided under any preconceived notions: New Praksh Transport Co. Ltd. v. New Suwarna Transport Co. Ltd. 1957 SCR 98: ((S) AIR 1957 SC 232). Here the matter was dealt with by administrative authorities acting in a quasi-judicial way. In all such cases, it is the punishing authority which orders suspension and issues notice of enquiry, though he may delegate the holding of the departmental enquiry to his subordinates or other persons. That is why the principle that a prosecutor cannot be a Judge is, without more, not applicable to departmental enquiries. If, however, allegations are made showing that the punishing authority is personally interested in the matter, the position may be different. It is sufficient to say that such allegations were not made and the only grievance put forward is that the District Operating Superintendent had suspended the two railway servants and directed an enquiry to be held against them. Secondly, the two railway servants fully knew the position but they did not raise any objection that the District Operating Superintendent should not deal with the matter. That being so, they should be regarded as having waived their objection. S. A. de Smith observes:

'Moreover, because the disqualifications do not themselves render the proceedings a nullity, a party may waive this objections to them. Objection is generally deemed to have been waived, if the party or his legal representative knew of the disqualification and acquiesced in the proceedings by failing to take objection at the earliest possible opportunity'.

(Judicial Review, pages 162-63)

'Shri Daphtary does not seriously contest the position that the objection could have been effectively waived. The alleged bias in a member of the tribunal does not render the proceedings invalid if it is shown that the objection against the presence of the member in question had not been taken by the party even though the party knew about the circumstances giving rise to the allegations about the alleged bias and was aware of his right to challenge the presence of the member in the tribunal'.

(Manak Lal v. Dr. Prem Chand, 1957 SCR 575 at P. 586: ((S) AIR 1957 SC 425 at p. 431).

Thirdly, the fact that there was a refusal to do the work of coupling and uncoupling of wagons was not in dispute. It was admitted in the departmental proceedings, in the Courts below and also in this Court. The only question which remained to be considered in those proceedings was whether the work of coupling and uncoupling of wagons was, under the relevant Standing Orders, a part of the duties of the two railway servants. In this situation, they could not be regarded as prejudiced in any way by reason of the consideration that, if the fact of refusal were disputed, the District Operating Superintendent could have been called as witness. Finally, the matter was reconsidered in appeal by the Deputy Chief Operating Superintendent, Calcutta. For all these reasons, even this ground is of no assistance to the two railway servants.

8. The result is that the two appeals fail and aredismissed. The appealing plaintiffs shall bear their owncosts and pay those of the defendant throughout. Hearingfee in each case Rs. 50/-/-.


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