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Sayed Ashan Ali Vs. Union of India (Uoi) and anr. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtOrissa High Court
Decided On
Judge
Reported in(1970)ILLJ567Ori
AppellantSayed Ashan Ali
RespondentUnion of India (Uoi) and anr.
Cases Referred and Union of India v. H.C. Goel
Excerpt:
.....engineer was competent to initiate the proceeding against the petitioner who is a class iii employee and that he also possessed the authority to frame chargesheet against the petitioner. 10. it is now well-settled that a public officer against whom disciplinary proceedings are intended to be taken is entitled to have two opportunities before disciplinary action is finally taken against him. in issuing the second notice the dismissing authority has naturally to come to a tentative or provisional conclusion about the guilt of the officer as well as the punishment which will meet the requirements of justice in his case, and it is only after reaching conclusion on both these provisionally that the dismissing authority issues the second notice......in relation to the issue of charge sheet, etc., under rules 1709 too 1712 and 1726, means any authority competent to impose any of the penalties specified in rule 1707. as regards the authorities competent to place a railway servant under suspension or to impose penalty, rule 1705 provides that the authorities where competent to place a railway servant under suspension and to impose penalties on him are specified in sch. i, ii and ii appended to the rules.5. rule 1707 mentions seven kinds of penalties of which those specified in clauses (iv) to (vi) are major penalties in contradiction with the rest which may be called minor penalties. the definition of the term ' disciplinary authority ' shows that any authority which is competent to inflict any of the penalties (whether it be.....
Judgment:

S. Barman, C.J.

1. The petitioner, a record clerk in the employment of the Southeastern Railway at Cuttack, was dismissed from service on a charge of having obtained railway passes for the purpose of his family and department relatives including therein a defendant unmarried sister-though he had usually no such dependent relative--as mentioned in the charge.

2. On 6 September 1961, the District Engineer, Southeastern Railway, Cuttack, charged the petitioner with having committed the said offence and asked him for his explanation. Thereafter, in the course of disciplinary proceeding against him there was an enquiry and ultimately on 31 January 1964, the General Manager, Southeastern Railway, dismissed the petitioner from service. This order was communicated to the petitioner by the Deputy Chief Personnel Officer, Southeastern Railway, by his letter, dated 2 February 1964. It is against this order of dismissal that the petitioner has filed this writ petition.

3. The points urged on behalf of the petitioner are, in substance, these: The proceedings against the petitioner should have been initiated by the appointing authority and not by the District Engineer. The General Manager who passed the order of dismissal did not apply his mind. It was also submitted that the explanation of the petitioner in his reply to the second notice, before the action proposed to be taken against; him, was not considered afresh; and thus the, petitioner was not given the second opportunity as contemplated under Article 311(2) of the Constitution.

4. On the question whether proceedings should have been initiated by the District Engineer who is admittedly not the appointing authority of the petitioner, there is nothing in Article 311 to show that the proceeding cannot be intiated by an authority other than the appointing authority. That apart, the relevant provision of the Indian Railways Establishment Code clearly show that the District Engineer was competent to initiate the proceeding against the petitioner who is a class III employee and that he also possessed the authority to frame chargesheet against the petitioner. Under Rule 1702 of the code. 'disciplinary authority' in relation to the issue of charge sheet, etc., under Rules 1709 too 1712 and 1726, means any authority competent to impose any of the penalties specified in Rule 1707. As regards the authorities competent to place a railway servant under suspension or to impose penalty, Rule 1705 provides that the authorities where competent to place a railway servant under suspension and to impose penalties on him are specified in sch. I, II and II appended to the rules.

5. Rule 1707 mentions seven kinds of penalties of which those specified in Clauses (iv) to (vi) are major penalties in contradiction with the rest which may be called minor penalties. The definition of the term ' disciplinary authority ' shows that any authority which is competent to inflict any of the penalties (whether it be major or minor) is competent to issue a chargesheet. But for actually imposing a penalty only that disciplinary authority would be competent which has been authorized by law for that purpose. In other words, an authority which is competent to impose only a minor penalty cannot impose a major or penalty though it is competent to issue a chargesheet. For awarding the punishment of compulsory retirement, dismissal or removal the 'disciplinary authority ' would be the appointing authority. It is not dispute that the District Engineer could impose upto the petitioner the penalties mentioned in Rules 1707 other than compulsory retirement, removal or dismissal, he therefore did posses the authority to frame the charges against the petitioner. This view is supported by the decision of the Rajasthan High Court in Sudarshan Lal Bajaj v. Agarwala (S.P.) Division Operating Superintendent, Western Railway 1966-I L.L J. 245.

6. The next question is : Did the General Manager apply his mind in passing the order of dismissal? In support of his contention the petitioner relied on the final order made by the General Manager in the relevant file which roads as follows:

Ashan Ali is dismissed from the service.

(Sd.) [Illegible].

31 January 1964.

The petitioner's point is that this cyptic one-sentence order passed by the General Manager, which does not give any reasons in support of his order, shows that he did not apply his mind while passing the order of dismissal. We are not prepared to accept this argument.

7. In dealing with the question as so whether it is obligatory on the punishing authority to give reasons in support of the order imposing a penalty on the delinquent officer, we cannot overlook the fact there disciplinary proceedings against such a delinquent officer begin with an enquiry conducted by the officer appointed is then behalf. The enquiry is followed by a report. Having regard to the material which was made available to the General Manager and also made available before the delinquent officer, it is unreasonable to suggest that the punishing authority must record the reasons why it did not accept the finding of the enquiry officer.

8. Whereas, in the present case, the punishing authority agrees with the findings of the enquiring officer, which go against the delinquent officer, we do not think as a matter of law it would be said that the authority cannot impose penalty against the delinquent offices in accordance with the finding of the enuiring officer unless it gives reasons to show why the said findings were accepted by him. The proceedings are quasi Judicial. but having regard to the manner in which these enquiries are conducted, we do not think that an obligation is imposed on the authority to record its reasons in every case. The punishing authority in this case the General Manager is to decide on the respect of the enquiring officer what action is to be taken against the delinquent. How the punishing authority arrives at that descision is not the concern of the delinquent. Even in the punishing authority makes the decision in consultation with any other authority. It is not open to challenges; as soon as the punishing authority takes the opinion of any other officer it becomes his opinion. Moreover, It cannot be said that the General Manager, in the instant case, did not apply his mind to the report of the enquiring officer before deciding on the action to be taken against the petitioner. The principles underlying this view are laid down by the Supreme Court in State of Madras v. Srinivasan (A.R.) A I.R. 1968 S.C. 1828 and Bibhuti BhusanPaul v. State of West Bengal and Ors. 1969-I L.L.J. 300.

9. Lastly, it was submitted on behalf of the petitioner that his explanation in reply to the second notice was not considered afresh. In support of his contention he relied on certain portion of a long note dated 25,January 1964 submitted by the S.P.O. (Staff). Paragraph 3 of the Note reads as follows:

In this connexion Janab Ashan Ali has repeated the same points which he had stated in explanation to the chargsheets. Since these points had already been scrutinized in details during the enquiry and the show-cause notice was issued after duly examining them, there is no justification to consider these points fresh: * * *

This is followed by several paragraph in which there is full discussion of the explanation given by the petitioner both during the enquiry proceeding and after the issue of the second notice and ultimately in the penultimate paragraph the notice says:

On the whole, Janab Ashan Ali has not brought forth any new point in his explanation and there is no justification for charging the decision already arrived at.

Relying on the two passage in the note quoted above, the petitioner contends that the explanation which he submitted against the finding of guilt, in the second notice, has not been considered by the punishing authority.

10. It is now well-settled that a public officer against whom disciplinary proceedings are intended to be taken is entitled to have two opportunities before disciplinary action is finally taken against him. If the findings of the enquiry report are against the public officer and the dismissing authority agrees with the said finding a stage is reached for giving another opportunity to the public officer to show cause why disciplinary action should not be taken against him. In issuing the second notice the dismissing authority has naturally to come to a tentative or provisional conclusion about the guilt of the officer as well as the punishment which will meet the requirements of justice in his case, and it is only after reaching conclusion on both these provisionally that the dismissing authority issues the second notice. In response to the notice, the public officer is entitled to show cause not only against the action proposed to be taken against him, but also against the validity or the correctnesss of the findings recorded by the enquiring officer and provisionally accepted by the dismissing authority. Is other words, the second opportunity enables the public officer to cover the whole ground and to placed that no case has been made out against him for taking any disciplinary action and than to urge that if he falls in substantiating his innocence, the action proposed to be taken against him is either unduly serve or not called for. It would thus be seen that the object of the second notice is to enable a public servant to satisfy the punishing authority on both the grounds. These principles are laid down in the reported decision of the Supreme Court which would show that it has never been suggested that the findings recorded by the enquiring officer conclude the matter and that the Government which appoints the enquiring officer is bound by the said findings and must not on the basis that the said findings are final and cannot be reopened. State of Assam and Anr. v. Bimal Kumar Pandit 1963-I L.L.J. 295 and Union of India v. H.C. Goel 1964-I L.L.J. 38.

11. It is therefore clear that when the petitioner was given the second notice, it was open to him to show that the findings recorded by the enquiring officer were not correct and that the proposed punishment was not justified. This opportunity he did have and he did submit his explanation in reply to the second notice.

12. The question is : Can it be said in the circumstances that the explanation of the petitioner in reply to the second notice was not considered by the punishing authority On a perusal of the entire note dated 25 January 1964 submitted by the S.P.O. (Staff) including the paragraph intervening between the paragraphs quoted above, it is clear that the petitioner's explanation was duly considered and upon such consideration the authority came to the conclusion that the petitioner has not brought out any new points in his explanation. It is not a case where the authority came to its conclusion about the disciplinary action to be taken against the delinquent officer, without considering his explanation or applying its mind to it. On the other hand, the entire note of the S.P.O. (Staff) shows that in order to flud out whether there was any new point raised by the petitioner the authority had to go into the details and deal with the points submitted both in his second explanation and it was only on a consideration of the submission made in both these explanations that the authority reached the conclusion that no new point had been brought forth in the second explanation; it is only in this context that it was stated that there was no justification to consider the points afresh. In this position, it cannot be said that the petitioner was not given a second opportunity in accordance with the constitution. In this view of the case the writ petition is dismissed, but there will be no order as to costs.

B.K. Patra, J.

18. I agree.


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