1. This writ petition has been filed in the following circumstances: The petitioner claims to be a permanent non-gazetted railway servant posted at Karnal as Chief Goods Clerk. He booked two wagons of livestock on 22nd February 1956 from Karnal to Alamnagar and according to railway receipt issued by the petitioner there were 15 animals exceeding 3 1/2 ft. in height arid 16 animals below 3 1/2 ft, in height. These wagons were raided at Subzimandi railway station on 23rd February 1956 by certain railway officers and on measurement it is alleged that there were 25 animals exceeding 3 1/2 ft. in height and 6 animals under 3 1/2 ft. in height; it was also alleged that when the livestock were being loaded at Karnal the I.C.G. who happened to be present at the railway station desired to verify the heights of the animals, but the petitioner refused to witness re-measurement.
On these grounds, the petition proceeds, a charge-sheet dated 2nd July 1956 was served on the petitioner on two heads. On 24th July 1956 the petitioner wrote a letter to the Divisional Commercial Superintendent Northern Railway to the effect that he may be permitted a personal interview to relate true facfs and other even's relating to the high-handedness of the I.C.G. By letter dated 7th August 1956 the petitioner was informed by D.C.S. through Station Master Karnal that he should first give his explanation inwriting; with the result that explanation dated 10th August 1956 was submitted by the petitioner. By letter dated 8th November 1956 the petitioner was informed, that the inquiry in the above case would be conducted by the Assistant Traffic-Superintendent and Traffic Accounts Officer at Karnal. The hearing took plate on several occasions and finally on 25th January 1957, the brief history of the case in writing was placed by the petitioner before the Chairman, Inquiry Committee. The petitioner was not given copies of the statements and the documents on the file.
Notice dated 6th March 1957 from Divisional Commercial Superintendent imposing penalty under rule 1702 was received by the petitioner informing him that his increment had been withheld. On receipt of this notice the petitioner wrote a letter to the Divisional Superintendent Northern Railway on 12th March 1957 asking for a copy of the inquiry proceedings including his statement and report of the Inquiry Committee; these documents being required in connection with the filing of an appeal. No reply having been received, a reminder was sent on 2nd April 1957.
By letter dated 10th April 1957 the petitioner was informed that he could see the confidential file on the subject on any working day in the following week. The petitioner accordingly went to the office and inspected the file, but was not allowed to note down anything from the file in writing, nor was he supplied the copies sought by him. On 17th May 1957 an appeal was filed to the Divisional Superintendent Northern Railway, New Delhi. On inspecting the records the petitioner found that the Inquiry Committee had remarked in the concluding para of the report as under:--
'They could not establish the exact extent of guilt as the raiding party had not recorded the exact measurement of individual animals and so the guilt is not due to the injention of the accused but is a minor irregularity hence the Committee recommends that the benefit of doubt should be given to the accused.'
On the other charge, the petitioner submits that no finding was given against the petitioner by the Inquiry Committee as it was not proved. The petitioner received a letter elated 10th June 1957 from the Divisional Superintendent informing him that the Officer had gone through the appeal and had rejected the same. The petitioner complains that he was refused his right of appeal and was not given any opportunity of being heard.
On 2nd July 1957 the petitioner wrote to the Divisional Superintendent requesting for a personal interview, to which a reply was sent stating that his appeal having been dismissed, there was no point in granting him an interview. The petifioner again wrote to the Divisional Superintendent requesting for revision of his case. No reply was received to this and to two subsequent reminders. The petitioner also alleges that the final notice was given by him on the 6th January 1958, to which he awaited a reply for about a month and then spending more than two months in obtaining legal advice he filed the present petition on 26th May 1938. assailing the notice of punishment dated 6th March 1957 and the order dated 10th June 1951 by which his appeal was rejected. The impugned notice and the order are rllegcd ultra vires and without jurisdiction on the grounds:--
(a) That no opportunity of being heard was given to the petitioner by the Divisional Superintendent.
(b) That on the finding- of the Inquiry Committee recommending the benefit of doubp to be given to the petitioner he should have been acquitted.
(c) That the Divisional Commercial Superintendent had no powers under the rules to impose the penalty, which could not be given by r.n officer below the rank of Divisional Superintendent.
(d) That no further opportunity to show cause was given to the petitioner and that even accepting the finding of the Inquiry Committee to be correct no punishment could be imposed on the petitioner.
2. In the reply filed 011 behalf of respondents preliminary objections have been raised questioning the jurisdiction of this Court to go into the correctness of the impugned order's which are described to be merely administrative orders. It is also contended that the writ petition is belated and has been filed after long delay. The notice is dated 6th March 1957 and the impugned order is dated 10th June 1957 and the petition was filed nearly one year later.
On the merits it is submitted that the Inquiry Committee had under the relevant rules to submit their report to the authority competent to impose the penalty who were merely to consider the report and to take such action as was warranted. The authority which imposed the penally, according to the reply, acted within his power and he took all relevant factors into consideration while coming to his decision. It is also alleged that there is no rule under which the defendant was entitled to claim copies of the proceedings of the Inquiry Committee; however he was given full opportunity to pursue the proceedings which the petitioner actually did.
Objection to the petitioner taking notes from the proceedings of the inquiry report has been expressly denied. It is also stated that the petitioner having actually quoted from the inquiry report shows that he was permitted to take whatever notes he desired. It is also alleged that the petitioner in his appeal did not ask for a personal hearing; it was only after the decision of the an-peal had been received by the petitioner that he asked for such a hearing.
3. The counsel for the petitioner has laised three points -- (1) that on the findings of the Inquiry Committee no penalty can in law be imposed, (2) that no show cause notice of the pro-nosed punishment was given to him and (3) that he has been denied the right nf appeal. So far as the first point is concerned, I do not find any merit in the contention raised. The competent authority is not bound to accept the findings of the Inquiry Committee and he is entitled under the rules to pass such orders as he thinks fit in the circumstances of the case (see Rule 1707 (e) of the I. R. E. Code).
With respect to the second point it is contended on behalf of the respondent that under Article 311(2) of the Constitution notice is necessary only with respect to three penalties. The three penalties mentioned in the Article being dismissal, removal or reduction in rank. Withholding of increment, according to the counsel for the respondent, is not a penalty with respect to which an opportunity of showing cause against the proposed action is required. The counsel submits that a reasonable opportunity, to defend against the charges framed, was given to the petitioner and since the action proposed did not fall within the category of dismissal, removal or reduction in rank, no secondnotice to show cause against the proposed action was considered necessary.
This penalty of withholding increment is covered by para 1713 of the Indian Railway Establishment Code and this para does not require any show cause notice. In my opinion there is force in this contention. During the course of the inquiry, it is clear, that the petitioner had been given full opportunity of placing his point of view and no cogent or compelling reason has been shown to justify interference on this ground. In the present proceedings reduction in rank as observed in Badri Pratap v. State of Rajasthan, AIR 1958 Raj 239, is not the same thing as withholding of increment, which is merely an instance of loss of prospects of earning more than what the employee may be earning at the time.
If a reasonable notice, to meet the charges levelled against the petitioner, was, in fact, given, during the course of the inquiry then, in my view, if the proposed action to be taken against him is merely of withholding of increment, be would not be entitled to the right conferred by Article 311(2), of the Constitution nor would failure to give such second notice violate any rule of natural justice. With respect to the last contention viz., denial of the right of appeal, it has been rightly contended by the counsel far the respondent that no personal dealing was demanded or asked for by the petitioner.
Para 1721 of the Indian Railway Establishment Code lays down the duties' of appellate authorities, and it is silent on the question of personal hearing. Rule 1721 A added on 29th September 1954, how ever, does contemplate a personal hearing, but it merely permits the appellate authority to give the Railway servant, concerned either at his (authority's discretion or if so requested by the appellant, a personal hearing, before disposing of the appeal. In so far as the exercise of discretion by the appellate authority is concerned, if is idle to contend that this Court can, under Article 226 of the Constitution, control the exercise of discretionary power at the instance of the petitioner. It is not suggested that the petitioner ever requested for a personal hearing. This contention thus also fails.
4. Mr. Salooja has also contended by relying on the ratio of Union of India v. T. R. Varma, (S) AIR 1957 SC 882, that under the law the present petitioner can institute a suit and therefore he cannot seek relief by way of a high prerogative writ. The counsel has further contended that no rules having been contravened by the department, then is no ground for interference under Article 226 of the Constitution.
5. In view of what has been stated above, it is hardly necessary to refer to the other authorities on which the counsel for the petitioner has placed reliance. Khem Chand v. Union of India, 1958 SCA 222: (AIR 1958 SC 300), being a case of dismissal would clearly be covered by Article 311(2) of the Constitution. State of U.P. v. Mohammad Nooh. 1958 SCA 73: (AIR 1958 SC 86), would thus also, be distinguishable. The decision in Parshotam Lal Dhingra v. Union of India, 1958 SCA 37: (AIR 1958 SC 36), is also not of much assistance to the petitioner because it has not been shown how the impugned order in the present case can be construed to he a reduction in rank.
As observed by Das, C.J., in Parshotam Lal Dhingra's case, 1958 SCA 37: (AIR 1958: SC 36). it is true that it the order entail or provides for the forfeiture of his pay or allowances or the loss of his seniority in his substanlive rank or the stoppage or postponement of his futurechances of promotion, then that circumstance may indicate that although in form the Government had purported to exercise its right to terminate the employment or to reduce the servant to a lower rank etc., in truth and in reality the Government has terminated the employment as and by way of penally.
The use of expression 'terminate' or 'discharge' is not conclusive. It is not shown how, accordingto these observations, the petitioner can, in thecircumstances established on this record, be held to have been reduced in rank. Apart from what has been stated above, in my view, the inordinatedelay in filing this writ petition also goes against the petitioner. The notice of punishment dated6th March 1957 and the order on appeal dated 8th June 1957 are being assailed by means of a writ petition filed on the 26th May 1958.
It is well established that unnecessary memo-rials can hardly justify long delay. On grounds of undue and unexplained delay and laches relief byway of high prerogative writ can legitimately and properly be refused; See Akhtyar Singh v. Inspector General of Police, Punjab, 1955-57 PLR 490: (AIR 1956 Punj 10) and Kundan Lekha v. State of Pun-jab, 1955-57 Pun LH 506 : ((S) AIR 1956 Punj 92)and, Gaudhinagar Motor Transport Society v. State of Bombay, AIR 1954 Bom 202. In the matter of managing and governing services also unless there is some serious and glaring violation of law or of some fundamental rule of natural justice, this Court should be slow to interfere on a petition tinder Article 226 of the Constitution.
6. For the reasons given above, this petitionfails and is hereby dismissed. In the circumstancesof the case, however, there will be no Order as, tocosts.