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Bansi Dhar Vs. Union of India - Court Judgment

LegalCrystal Citation
SubjectService
CourtDelhi High Court
Decided On
Case NumberCivil Writ Appeal No. 757 of 1976
Judge
Reported in1977LabIC1636; 1977RLR100
ActsRailway Servants (Discipline and Appeal) Rules, 1968 - Rule 25
AppellantBansi Dhar
RespondentUnion of India
Advocates: G.D. Gupta,; B.K. Choudhry and; U.S. Dhir, Advs
Excerpt:
.....implication on a statutory..........for the railway administration sought to justify the impugned orders on the ground that the rule empowered successive review of order made in enquiries and the general manager was thereforee, competent to undertake a review in the present case even though the lower reviewing authority had upheld the order of the punishing authority. [in para 5, rule 25, is reproduced]. (6) it appears to me that the contention of the petitioner must prevail on the plain language of the rule. the use of the expression 'or' in sub-rule (1) of rule 25 while different authorities are enumerated in clauses (1) to (v) of it clearly indicates that the power may be exercised by any of the authorities who may be competent to undertake a review. there is nothing in the rule which may authorise more than one.....
Judgment:

H.L. Anand, J.

(1) The principal question that this petition raises is as to the interpretation of Rule 25 of the Railway Servants (Discipline & Appeal) Rules, 1958 (for short, the Rules) and in particular whether the Rule confers on the various authorities the power of successive review.

(2) The petitioner who, at the material time was a Senior Booking Clerk in the Northern Railway at Moradabad was charged with misconduct. After a departmental enquiry the punishing authority, however, exonerated the petitioner of the charge by an order made on March I, 1973 and the case was treated as closed. The exoneration was upheld by the next higher authority, the Divisional Superintendent, Moradabad on a motion for review of the decision of the punishing authority under Rule 25 of the Rules. That in course of time the petitioner was promoted as Senior Parcel Clerk. Subsequent to the promotion of the petitioner the petitioner got involved in certain controversies with the Railway Administration with regard to his transfer and eventual cancellation of his promotion as a sequel to which the petitioner filed a suit in October, 1974. Subsequent to the filing of the suit the petitioner was also suspended, an action which was also challenged in separate proceedings in a court of law. Meanwhile, it appears that on a consideration of the record of service of the petitioner the Railway Board observed that there was 'adequate positive evidence to hold the charge as proved' and expressed the view that before the case was considered for review 'at the next higher level' under the rules his case 'should be reviewed under Rule 2046-R-II of the Indian Railway Establishment Code, Vol. Ii, if due, as it is observed that Shri Dhar bears a tarnished record of the service'. By its Communication of October 25, 1975 the Board, thereforee, directed the General Manager (Vig.), Northern Railways that 'action on the lines suggested above may please be taken and result thereof advised to the Board'. It appears that time for review of the case of the petitioner under 2046-R-II of the Indian Railway Establishment Code, Vol. Ii, was not yet ripe. The General Manager, Northern Railway, however, initiated proceedings under Rule 25 of the Rules to review the order of exoneration and informed the petitioner by his communication of January 20, 1976, after a lapse of almost three years of the order of exoneration, that 'in terms of Rule 25 of the Railway servants (Discipline and Appeal) Rules, 1968 the undersigned has reviewed the case and does not agree with the findings of the Enquiry Officer'. The petitioner was further informed that for the reasons stated in the Memorandum attached to the communication the General Manager felt that charge against the petitioner w

(3) The impugned orders are assailed principal on the ground that the Rule did not envisage successive review by the various authorities and once the power of review had been exercised by the Divisional Superintendent and the order of exoneration had been upheld, the power of review stood exhausted and there could be no further review by any authority next higher to the authority which had confirmed the order.

(4) On the other hand learned counsel for the Railway Administration sought to justify the impugned orders on the ground that the Rule empowered successive review of order made in enquiries and the General Manager was thereforee, competent to undertake a review in the present case even though the lower reviewing authority had upheld the order of the punishing authority. [In para 5, Rule 25, is reproduced].

(6) It appears to me that the contention of the petitioner must prevail on the plain language of the Rule. The use of the expression 'or' in sub-rule (1) of Rule 25 while different authorities are enumerated in clauses (1) to (v) of it clearly indicates that the power may be exercised by any of the authorities who may be competent to undertake a review. There is nothing in the Rule which may authorise more than one authority to undertake the review or to justify the conclusion that there may be successive reviews as if the order made by the reviewing authority had itself been made subject to review. The Rules envisage an hierarchy of authorities and that is why different authorities would be the reviewing authorities in relation to different orders made under the Rules. There is thereforee, no warrant for the view that all the higher authorities would be entitled to undertake review even though the lowest reviewing authority had exercised such a power. The rule authoritises review of 'any order made under these rules' which has relevance to the 'inquiry' and clearly points to the power to review the order of the punishing authority under the rules either imposing the penalty or exonerating the Railway employee. An order made under R. 25 confirming ordered of punishing authority on review is not within the expression 'order made under these rules' occurring in Rule 25. In other words, the order of the reviewing authority is not subject to any further review. If the Rule was intended to confer the power of successive review and to make the order of reviewing authority subject to review by next higher authorities one would have expected a clear indication in the phraseology of the Rule to that effect. It is well settled that the right of appeal, as indeed of revision and review, are creatures of statutes and there is no implied power to revise the order of a subordinate authority, in the sense in which the expression 'review' is used in Rule 25. Any power of successive review or successive revision of the order of a lower authority must, thereforee, be based expressly or by necessary implication on a statutory rule. There is nothing in the Rule which could be said expressly or by necessary implication to justify the existence of such power. A conclusion that there is successive power of review would be wholly inconsistent with the scheme of the Rules. The Rules envisage that there are certain orders which are appealable while there are others against which no appeal lies. Where there is a provision for appeal there is only one appeal provided. ''Where, however, there is no provision for appeal at all or an appeal, though provided, has not been preferred the Administration or the aggrieved Railway servant can invoke the power of review. There can, thereforee, be only one opportunity to seek a review from any of the authorities who way be competent. It follows, thereforee, that once one of the competent reviewing authorities has exercised the power of review and had either reviewed the order or confirmed the order sought to be reviewed that exhausts the power of review under the Rule and there can be no further review, either of the original order or of the order made on review one way or the other. Order quashed.


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