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Kunhabdulla Vs. Union of India (Uoi) and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKerala High Court
Decided On
Judge
Reported in(1984)ILLJ118Ker
AppellantKunhabdulla
RespondentUnion of India (Uoi) and ors.
Cases ReferredPickering v. Board of Education
Excerpt:
.....of a local newspaper criticising the way in which the board of education and the superintendent of schools had handled past proposals to raise new revenue for the schools. and it goes on to say that the railway minister and the chairman, railway board, were attributing those accidents to human failure and sabotages......to the letter to the editor which appeared in the indian express (ext. p5). ext. p10(a) is the copy of a letter dated 5th january, 1982 written by the petitioner to the editor, indian express, madras, requesting him to attend the dar enquiry as a witness. ext. p11 is the copy of the proceedings of the enquiry dated6th april, 1982; and ext. p12 is the copy of the defence statement thereto submitted by the petitioner. as already noticed, the copy of the penalty advice dated 26th august, 1982, which is under challenge in this writ petition, is ext.p13.3. the main contentions in the writ petition are: (1) in view of ext. p1 the 4th respondent, the general manager, was the appointing authority, not the 2nd respondent, and, therefore, he alone was competent to initiate disciplinary.....
Judgment:

Bhaskaran, A.C.J.

1. The petitioner who was an Assistant Station Master at Ambur Railway Station of the Madras Division, Southern Railway, Madras, headed by the 4th respondent, the General Manager, Southern Railway, Madras, was ordered to be removed from service by Ext. P. 13 penalty advice dated 26th August, 1982 issued by the 2nd' respondent, the Divisional Operating Superintendent, Southern Railway, Madras. The writ petition is for the quashing of Ext. P. 13 and for the issue of a writ of mandamus directing the respondents to reinstate the petitioner in service with all attendant benefits.

2. The petitioner was appointed to the post of Assistant Station Master, on completion of his training, by the 4th respondent by his order dated 2nd January, 1964, a true copy of which is Ext. P. 1; the petitioner was, during the material time, the elected Secretary (Finance) of the All India Station Masters' Association, Southern Zone; an extract of Article 3 of the Constitution dealing with the objectives of which the said Association was established is Ext. P.2; Ext. P.3 is the extract of the proceedings of the Central Committee of the Association which met at Lucknow on the 3rd and 4th May, 1981; Ext. P.4 is an extract of the discussion of a statement of Railway accidents made in the Rajya Sabha on 18th August, 1981; Ext. P.5 is an extract of the letter as published in the Indian Express dated 4th August, 1981; and Ext. P6 is a copy of the major penalty charge memo dated 10th/ 14th September, 1981 issued by the 2nd respondent to the petitioner stating in substance that the petitioner had committed serious misconduct and acted in a manner unbecoming of a Railway servant, in that he had sent a letter to the Editor of the Indian Express (which was published in the Indian Express on 4th August, 1981) containing objectionable matters, criticising the top administration of the Railways, under the name P.K. Abdulla, without obtaining the sanction of the competent authority, contravening Rules 3(1)(i), (3)(1)(iii) and 19(1) of the Railway Services (Conduct) Rules, 1966 (the Conduct Rules). In his representation dated 24th September, 1981, a true copy of which is Ext.P7, the petitioner had raised certain objection:, sought certain clarifications, demanded the summoning of witnesses and documents enlisted, and requested for access to documents for the purpose of preparing an effective defence statement. Ext. P8 is the true copy of the reply dated 19th December, 1981 sent by the 2nd respondent to the petitioner's representation Ext. P7. Therein the 2nd respondent had stated that it was up to the petitioner to secure the attendance of the witnesses to be examined at the enquiry. In the meanwhile, under the orders of the 2nd respondent dated 17th/19th December, 1981, a true copy of which is Ext. P9, Sri H. Lakshmanan, ATS/MAS was appointed to be the Inquiry Officer to enquire into the charges against the petitioner, Thereafter the petitioner sent a letter dated 5th January, 1982, a' true copy of which is Ex. P10, to Sri Mohinder Singh Gujral, the then Chairman of the Railway Board, requesting him to file an affidavit in the enquiry proceedings stating his real objections to the letter to the Editor which appeared in the Indian Express (Ext. P5). Ext. P10(a) is the copy of a letter dated 5th January, 1982 written by the petitioner to the Editor, Indian Express, Madras, requesting him to attend the DAR enquiry as a witness. Ext. P11 is the copy of the proceedings of the enquiry dated6th April, 1982; and Ext. P12 is the copy of the defence statement thereto submitted by the petitioner. As already noticed, the copy of the penalty advice dated 26th August, 1982, which is under challenge in this writ petition, is Ext.P13.

3. The main contentions in the writ petition are: (1) In view of Ext. P1 the 4th respondent, the General Manager, was the appointing authority, not the 2nd respondent, and, therefore, he alone was competent to initiate disciplinary proceedings or to issue a penalty advice in the nature of Ext. P13; (2) the identity and the contents of the letter alleged to have been sent by the petitioner to the Editor of the Indian Express, of which Ext. P5 is stated to be a reproduction, have not been proved; (3) Ext. P6 charge memo is not in conformity with the requirement of Rule 9(6)(i) of the Railway Servants (Discipline & Appeal) Rules, 1968 (D&A; Rules); and the clarifications sought by Ext. P7 were not given; (4) Ext. P5 contained only matters Of public interest which were the subjects of national debate; and hence Ext. P5 did not contain any adverse criticism to give rise to any charge; (5) the enquiry was vitiated for not having been in compliance with the relevant provisions of the D&A; Rules inasmuch as the charge was vague; the attendance of the witnesses was not procured; there was delay in holding the enquiry; documents were not caused to be produced; the petitioner was not allowed to submit a second defence statement before adducing evidence in support of the defence on completion of the case of the disciplinary authority; the petitioner was not questioned to give him an opportunity to explain the circumstances in evidence appear-ring against him; and the finding of the Enquiry Officer was not supported by acceptable evidence.

4. In the reply affidavit dated 20th April, 1983 to the counter-affidavit of the 2nd respondent dated 11th March, 1983, the petitioner has reiterated his stand in the writ petition and controverted all the material allegations made in the counter affidavit.

5. In the counter affidavit the 2nd respondent has stated inter alia that the petitioner was appointed under order No. M/F 563/1/Pro. ASM, dated 25th March, 1963 of the Divisional Personnel Officer, Southern Railway, Madras Division, Madras, as a Probationary Assistant Station Master and was directed to join the Central Training School at Tiruchirappallii for training on 1st April, 1963; the All India Station Masters' Association was not a recognised Union, but only a registered Trade Union having no locus standi; the petitioner had earlier suffered punishment while he was working as ASM at Pachchakuppam for the offence committed on the night of 30th/31st July, 1975; to advise on railway safety, many high power committees had been appointed from time to time; as a Railway servant the petitioner was expected to obtain prior permission before entering into any communication with the press, and was duty bound not to make any statements to the Press critical of the policies of the Government; Ext. P5 is in violation of the provisions contained in Rules 3(i), 3(iii), 8, 9 and 19(i) of the Conduct Rules; the enquiry was held scrupulously, following the procedure prescribed in that behalf; no cause of action arose within the territorial jurisdiction of this Court, and, therefore, the writ petition was not maintainable and the petitioner was not entitled to any relief. In the rejoinder dated 17th June, 1983 the 2nd respondent has reiterated his stand in his counter affidavit.

6. The counsel for the Railway took a preliminary objection to the maintainability of the writ petition contending that no part of the cause of action arose within the territorial jurisdiction of this Court. According to him the petitioner was employed as an Assistant Station Master outside the jurisdiction of this Court. The Officers under whom he was employed and the Officer who passed the impugned order also were outside the Jurisdiction of this Court. It was also submitted that the termination of the petitioner's service had taken effect on 27th August, 1982 when the order of termination was fixed up on the notice board of the office where the petitioner was working, having failed to effect the service of the order on the petitioner direct due to his absence from his residence and in the office. The defence put forward in terms of the contention raised in paragraph 8 of the writ petition is that the petitioner was on leave from 26th to 28th; during that period he had gone home which is at Mayanoor in Badagara within the jurisdiction of this Court; having fallen sick he had asked for extension of leave by ten days which was subsequently granted also; it was during that sojourn at Mayanoor he received the impugned communication Ext. P13; and by that alone he came to know of the order of removal from service passed by the respondents against him. Reliance was placed by the respondents on the decision of this Court reported in Asst Security Officer, Pothannur v. Kulinga Gounder 1976 KLT 673. In that case the only plea raised by the respondent in the Writ Appeal before this Court in support of jurisdiction was that the 1st appellant should be taken to have been functioning inside the Kerala State as well, though his office was situated outside the state, because his jurisdiction extended to areas within the Kerala State. In the same judgment it was also observed by Govindan Nair, C.J., that if the first appellant had done any act inside the Kerala State affecting persons functioning inside the State, this Court would have had jurisdiction. It was submitted by the counsel for the petitioner that the above decision of the Division Bench of this Court could be distinguished inasmuch as the only plea raised in that case was that the workers should be deemed to have been working within the territorial jurisdiction of this Court, as the jurisdiction of the officers under whom they worked extended to some parts of Kerala, not that any part of the cause of action had arisen within the State of Kerala. It might be noted, as held by Calcutta High Court in Umasanker Chatterjee v. Union of India 1982-II L.L.J. 378, that--

When an order of dismissal or removal from service is sent out, it is effective on the authority concerned, but so far as the Government servant is concerned, it becomes effective only when he is apprised of it either by oral communication or by actual service of it upon him.

Even assuming that on an assessment of the evidence it might be possible to construe that on the facts of the case the order of removal had taken effect with effect from 27th August, 1982, when the attempt by the authorities to cause notice to be served on the petitioner direct failed, as he was not found at his residence, and it was pasted on the notice board at the Railway premise, it could not be said that the pleading of the petitioner that he was not aware of the order of dismissal earlier, and it was only on receipt of the original of Ext. P13 which is under challenge in this writ petition, that he came to know about the order of removal is incorrect. A question whether, in the light of the relevant rules, the petitioner could have left jurisdiction without permission when he was on casual leave from 26th August, 1982 to 28th August, 1982, also might arise. These are matters for decision in appropriate proceedings. That would not, however, affect the jurisdiction of this Court to entertain the writ petition to challenge Ext. P13 which the petitioner received through post while he was residing within the territorial jurisdiction of this Court. I, therefore, reject the preliminary objection as to the maintainability of the writ petition on the ground that this Court has no territorial jurisdiction to entertain the writ petition.

7. Another contention raised by the respondents is in regard to the alternate remedy of appeal available to the petitioner. With respect to this, the averment made in paragraph 9 of the writ petition is:

The order of removal is totally without jurisdiction and ultra vires the rules and directly in violation of Article 311 of the Constitution of India. The reasons shown for the removal is further an infraction of the fundamental rights guaranteed to the petitioner under Article 19(1)(a) and (c) of the Constitution of India. In these circumstances this humble original petition is filed without resorting to the alternative remedies as to appeal provided in the rules....

Inasmuch as the stand taken by the petitioner is that his fundamental rights have been infringed and it is for the enforcement of such right that the writ petition was filed, I do not think that the alternate remedy of appeal, which the petitioner considered not to be effective and efficacious, would deprive the petitioner of his right to approach this Court.

8. Now, in regard to the main question relating to Ext. P5, the petitioner has raised a two-fold contention; one relates to the proof of the authorship of the letter, the reproduction of which is Ext. P5, which had appeared on 4th August, 1981 in the Indian Express; and the other relates to the evaluation of the contents thereof. The contention is that it has not been established that the petitioner is responsible for the publication, for, according to the petitioner, it was not proved that it was his letter which appeared in the Press; and secondly, it has not been established that it was violative of the provisions contained in Rules 3(1)(i), 3(1)(iii) and 19(1) of the Conduct Rules. Those rules read as follows:

3, General--(1) Every railway servant shall at all times--

(i) maintain absolute integrity;

* * * * (iii) do nothing which is unbecoming of a railway or Government servant.

* * * *19. Vindication of Acts and Character of Railway Servants. (1) No railway servant shall, except with the previous sanction of the Government, have recourse to any court or to the press for the vindication of any official act which has been the subject matter of adverse criticism or an attack of a defamatory character.

In this context reliance was placed by the counsel for the petitioner on decision of the U.S. Supreme Court in Pickering v. Board of Education 20 L. Ed 2nd 811 (reproduced in 19(i8). That was a case where a law days after a proposal to increase school taxes was defeated by local voters, a public school teacher wrote a letter to the editor of a local newspaper criticising the way in which the Board of Education and the Superintendent of Schools had handled past proposals to raise new revenue for the schools. After the letter was published, the Board of Education determined that its publication was detrimental to the District and that the interests of the school required the teacher's dismissal. The Circuit Court of Will County, Illinois, upheld the dismissal, and the Supreme Court of Illinois, two justices dissenting, affirmed the judgment of the Circuit Court and rejected the teacher's contention that his remarks and comments in the letter were protected by the constitutional right of free speech. On certiorari, the United States Supreme Court reversed the decision of the Supreme Court of Illinois. In an opinion by Marshall, J., expressing the views of six members of the Court, it was held that in the absence of proof of false statements knowingly or recklessly made by the teacher his right to speak on issues of public importance could not furnish the basis for his dismissal, and that under the circumstances of the case his dismissal violated his constitutional right to free speech. In the present case it cannot be said that the opinion expressed by the petitioner in Ext. P5 is directed against any particular officer or authority under whom the petitioner had direct employment or relationship or that it was intended to adversely affect the image of the Railway administration. In paragraph 1 of Ext. P5 it is pointed out that there was a sudden spurt in the number of railway accidents in the (sic) cent months; and it goes on to say that the Railway Minister and the Chairman, Railway Board, were attributing those accidents to human failure and sabotages. In paragraph 2 it emphasises that 'punctuality is important but not at the cost of safety', and points out that it was not proper to insist on loco running staff to work overtime without proper rest. In the last paragraph what is pointed out relates to the dearth of skilled workers in the lower levels for proper maintenance of tracks and bridges. Read and understood as a whole, the letter to the Editor, in my view, is aimed at focusing the attention of the Railway administration on the need for providing safety measures to prevent recurrence of accidents and the adverse effect of what he thought to be repressive measures against Railway workmen. In this context it has to be borne in mind that recurrence of accidents was a subject of national debate which was also discussed in Parliament as is evident from Ext. P4. Giving a liberal interpretation to the constitutional right of freedom of speech guaranteed under Article 19(1)(a) of the Constitution, I think the petitioner could not be held to be guilty of charge under Rules 3(1)(i), 3(1)(iii) and 19(1) of the Conduct Rules.

9. I am not pronouncing anything on the correctness or otherwise of the procedure adopted by the 2nd respondent or the Enquiring Officer in the course of the enquiry proceedings, as it is not necessary in view of the fact that I have found that the charges as framed against the petitioner have not been made out.

For the foregoing reasons the writ petition is allowed and the 2nd respondent is directed to reinstate the petitioner forthwith into service with attendant benefits. In the circumstances of the case there will be no order as to costs.


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