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Sidhu Ram Bhoja Ram Vs. the Secretary, Railway Board, Ministry of Railway and anr. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Writ No. 783-D of 1963
Judge
Reported inAIR1967P& H383
ActsConstitution of India - Article 226; Railway Establishment Code - Rules 1731 and 1732
AppellantSidhu Ram Bhoja Ram
RespondentThe Secretary, Railway Board, Ministry of Railway and anr.
Appellant Advocate S.L. Sethi, Adv.
Respondent Advocate Nanak Chand, Adv.
DispositionPetition dismissed
Excerpt:
.....interlocutory judgment fall in the category of orders referred to clause (a) to (w) of order 43, rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. amended section 100-a of the code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a..........examiners with a view to shielding them. a regular enquiry was held against the petitioner and the enquiry officer found that the charges against the petitioner stood established. three contentions have been raised by mr. sethi, the learned counsel for the petitioner :--(1) the report of the enquiry officer is based on conjecture but even assuming his findings to be correct, they could not have led to the proof of the charge;(2) the appellate authority declined to give personal hearing to the petitioner in spite of his request; and(3) the order passed by the appellate authority without discussing the merits of the case and without giving reasons cannot be sustained since the authority was expected to act judicially.2. regarding the first contention i am afraid i cannot agree with the.....
Judgment:

S.K. Kapur, J.

1. By this writ petition the petitioner has challenged the validity of an order dated 25th June, 1962, (Annexure 'J' to the petition), imposing on the petitioner a penalty of removal from service with effect from 28th June, 1962 (forenoon). The petitioner a Guard in Northern Railway, was charge-sheeted on 17th March, 1960. alleging inter alia that the petitioner issued three Guard's Certificates to six passengers with dishonest intention and in connivance with the Travelling Ticket Examiners with a view to shielding them. A regular enquiry was held against the petitioner and the Enquiry Officer found that the charges against the petitioner stood established. Three contentions have been raised by Mr. Sethi, the learned counsel for the petitioner :--

(1) The report of the Enquiry Officer is based on conjecture but even assuming his findings to be correct, they could not have led to the proof of the charge;

(2) the appellate authority declined to give personal hearing to the petitioner in spite of his request; and

(3) the order passed by the appellate authority without discussing the merits of the case and without giving reasons cannot be sustained since the authority was expected to act judicially.

2. Regarding the first contention I am afraid I cannot agree with the learned counsel for the petitioner. The Enquiry Officer has considered the entire evidence and has therefrom inferred that the petitioner issued three Guard's Certificates to shield the Travelling Ticket Examiners and that was done in connivance with them. In paragraph 25 the Enquiry Officer has observed:--

'A special feature of the case is that Guard Shri Sidhu Ram issued 3 Guard's Certificates between Panki and Kanpur Central even though the last Guard's Certificate issued by him up to Panki had been signed by Shri S.N. Sharma, TTE of the HQ Squad. The question arises if this further issue of 3 Guard's Certificates indicates connivance on part of the Guard to protect the TTEs. As already seen ACO/T, the Officer in charge of the raid, accepting the

statements of the passengers, had himself asked the TTE of the HQ Squad, Shri R.C. Sharma to go with the train to Kanpur and issue EFTs to the passengers, yet the Guard could have refused to issue the Guard's Certificates to the passengers on the grounds that he had not permitted them, or alternatively

that the last page of Guard's Certificates Book had been signed. The responsibility of dealing with passengers would then have been of the

HQ Squad. The fact that he did issue the Guard's Certificates only shows that he was keen to cover up for the Train TTEs as he had not permitted the passengers to travel; and that he connived with the TTEs.'

3. The above observation also clearly shows that he drew an inference of fact from certain circumstances. Even if that inference be incorrect it is not open to me to interfere therewith under Article 226 of the Constitution. Mr. Sethi then refers to the discussion by the Enquiry Officer regarding non-observance by the petitioner of certain regulations governing the issue of Guard's Certificates. He says that letter No. 315-MC/O/13 dated 2nd September, 1959, and two other letters and/or circulars mentioned in paragraph 27 of the Enquiry Report were not even known to the petitioner and yet the Enquiry Officer has laid the blame on the petitioner for non-observance thereof. That again is more of hair splitting than possessed of any substance. Reference to these documents has been made after a clear finding about the connivance of the petitioner with Travelling Ticket Examiners only to answer an argument on the assumption that the petitioner had actually permitted the passengers to travel. Moreover, it cannot be said that the view taken by the Enquiry Officer is not a possible view or is not based on evidence. The Enquiry Officer has fully discussed the materials available on the subject and come to a finding of fact. He also had recourse to the Pocket Guide of ex.East India Railway and the Commercial Manual of ex.North Western Railway laying down the duties of Guards. Nothing seems to have been urged before the Enquiry Officer as is sought to be canvassed before me that the Pocket Guide and the Commercial Manual were not applicable. I find it difficult in these circumstances to accede to the arguments of Mr. Sethi. Mr. Sethi has taken me through the relevant parts of the report and the perusal thereof fully supports the view that I have taken that the report is based on evidence and the inferences drawn by the Enquiry Officer are pure inferences of fact. If the report is held to be based on evidence then I do not see how Mr. Sethi is justified in contending that the facts proved do not lead to the proof of the charge. The charge in substance was that the Travelling Ticket Examiners were carrying certain passengers with dishonest intention and the petitioner issued the Certificates to shield them. That is precisely what has been found and properly too on the basis of the materials. I do not suggest that on this evidence another Enquiry Officer may not have come to a different conclusion, but that is a matter which can hardly arise for consideration before me.

4. This takes me to the second contention of Mr. Sethi. In his appeal filed before the Secretary, Ministry of Railways, the petitioner made a request for the grant of a personal interview aided by a defence counsel. The petitioner also annexed to the appeal a 'No Objection Certificate' from one Shri J.C. Anand, Divisional Secretary, expressing his willingness to act as petitioner's defence counsel. A communication was addressed to the petitioner on 31st July, 1963 (Annexure 'L' to the petition) by the Divisional Superintendent saying --

'The Board have carefully considered the appeal preferred by Shri Sidhu Ram, ex. Guard, Tundla against the General Manager's orders removing him from service but they do not find any justification for revising the decision already taken by the General Manager in this case. The appeal has, therefore, been rejected and the appellant may be informed accordingly.'

5. It appears that no mention was made in any communication about the petitioner's request for a personal hearing. Mr. Sethi has relied on Rule 1732, Railway Establishment Code, the relevant part whereof reads --'SPECIAL PROVISIONS FOR NON-GAZETTED STAFF. --

(1) Where the penalty of dismissal, removal from service, compulsory retirement reduction in rank or withholding of increment has been imposed, the appellate authority may give the railway servant either at his discretion or if so requested by the latter a personal hearing, before disposing of the appeal. At this personal, hearing the railway servant may be accompanied, if he so chooses, by another railway servant of the same railway or an official (who is not a professional lawyer) of a Railway Trade Union recognised by the railway on which the accused railway servant is employed.'

Mr. Sethi's contention is that whenever a request is made for a personal hearing the appellate authority is bound to grant that request and the word 'may' in Rule 1732 must in the context be read as mandatory. On the other hand, Mr. Nanak Chand, the learned counsel for the respondent, maintains that the word 'may' is directory and it is discretionary with the appellate authority to either allow that request or not. Ordinarily, the words 'shall' and 'must' are mandatory and the word 'may' is directory although they are often used interchangeably. It is this use, without regard to the literal meaning, that generally makes it necessary for the Courts to resort to construction in order to ascertain the real intention of the draftsman. Nevertheless, it is generally presumed that the words are intended to be used in their natural meaning. Law Reports do show that when a statute deals with the rights of the public, or where third person has a claim in law to the exercise of the power, or something is directed to be done for the sake of justice or public good, or when it becomes necessary to sustain the constitutionality of a statute, the word 'may' is sometimes read as 'must'. In the last analysis it is always a matter of construction of the statute in question. It is well recognised that ordinarily the administrative bodies exercising quasi-judicial functions may regulate their own procedure and so long as they do not in doing so violate any statute or the rules of natural justice, no exception can be taken to such regulation. Unless, therefore, the word 'may' in Rule 1732 is read as 'must', as has been urged by Mr. Sethi at the bar, no objection can, I think, be taken to the appellate authority's order on the ground that the petitioner was denied a personal hearing. The word 'may' in Rule 1732 governs both the matters, namely, giving of earing at the appellate authority's discretion, and when requested by the appellant. If the word 'may' is read as 'must' it will lead to the conclusion that under the said rule the appellate authority must in all cases grant a personal hearing to the appellant. If that were the intention, a much simpler language would have achieved the purpose. There was no point, then, in the draftsmen of Rule 1732 saying that the appellate authority 'must' give the railway servant either at its discretion or if so requested a personal hearing and yet that is how the rule will have to be read if 'may' is to be substituted by 'must'. In my opinion, the word 'may' in Rule 1732 is directory and confers a discretion on the appellate authority to either grant a personal hearing at its discretion even when no request to this effect has been made and/or grant such a hearing on a request for the same. In this view there is no force in the second contention of Mr. Sethi. Normally I should have expected the appellate authority to refer to and deal with this request of the petitioner but it appears that the appellate authority considered the grant of the request unnecessary.

6. In elaboration of the third contention Mr. Sethi wants me to deduce from the brevity of the order that there was no consideration of the petitioner's appeal at all. He has drawn my attention to Rule 1731 which prescribes the various matters to be considered by the appellate authority. It has not been disputed that the provisions of Rule 1731 are applicable only in the case of an appeal against an order of suspension. There is no material before me on the basis of which I can come to the conclusion that the appeal was not considered by the appeallate authority at all as has been alleged by Mr. Sethi.

7. In the result this petition fails and is dismissed with no order as to costs.


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