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Khodubha Harising Gohel Vs. Union of India (Uoi) and ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtGujarat High Court
Decided On
Judge
Reported in(1980)21GLR988
AppellantKhodubha Harising Gohel
RespondentUnion of India (Uoi) and ors.
Cases ReferredDebi Deen v. The Divisional Operating Superintendent
Excerpt:
.....is violative of the mandatory provision contained in rule 22 of the railway servants (discipline & appeal) rules, 1968 which govern the present case. (a) whether the procedure laid down in these rules has been complied with, and if not, whether such non-compliance has resulted in the violation of any provisions of the constitution of india or in the failure of justice: ordinarily in a case like this, if the state government gives sufficient reasons for accepting the application of one party and rejecting that of the others, as it must, and the central government adopts the reasoning of the state government, this court may proceed to examine whether the reasons given are sufficient for the purpose of upholding the decision. if the state government gives a number of reasons some of which..........is violative of the mandatory provision contained in rule 22 of the railway servants (discipline & appeal) rules, 1968 which govern the present case.5. i am of the opinion that this petition should be allowed on the short contention which has been urged on behalf of the petitioner and reproduced at point no. (3) above. the material part of rule 22 which provides as to how an appeal is to be considered reads as under:22. consideration of appeal - (1) in the case of an appeal against an order of suspension, the appellate authority shall consider whether in the light of the provisions of rule 5 and having regard to the circumstances of the case, the order of suspension is justified or not and confirm or revoke the order accordingly.(2) in the case of an appeal against an order imposing any.....
Judgment:

B.K. Mehta, J.

1. The history of this petition has a chequered career inasmuch as it has passed through many vicissitudes. The petitioner joined the services on or about January 29, 1955 in the Workshop of the Electrical Department at Morbi of the Western Railways. He was promoted as Electrical Fitter somewhere in 1957 and was working at the relevant time at Bhavnagarpara where the Western Railways have got Divisional Head quarters. It appears that on January 8, 1973, respondent No. 2, who happened to be the Disciplinary Authority of the petitioner chargesheeted the petitioner for the offence of misconduct, inasmuch as he assaulted a woman worker in the canteen attached to the said Workshop, as well as insubordination and absconding from duty without leave, and after regular inquiry was held he was served with a penalty notice on January 8, 1973 to show cause why he should not be removed from the service. The petitioner submitted his written explanation on January 18, 1973, which did not impress the Competent Authority, who, by his order of March 1, 1973, removed the petitioner from the service. Being aggrieved with this order of removal, the petitioner went in appeal before the then Assistant Chief Electrical Engineer, who happened to be the Appellate Authority, but with no avail and his appeal was dismissed by the order of March 30, 1973.

2. The petitioner, therefore, after serving the statutory notice as required under Section 80 of the Civil Procedure Code, filed a suit in the Court of Civil Judge (S.D.) Bhavnagar being Special Civil Suit No. 41 of 1974, for various reliefs including quashing and setting aside the impugned order and for reinstatement with all back wages. It appears that the impugned order was challenged on various grounds, but at the time of hearing before the learned Civil Judge the petitioner restricted his challenge to the impugned order only on one ground, namely, the order being not a speaking order. This contention found favour with the learned Civil Judge, who by his order of April 21, 1975 set aside the impugned order and granted the following reliefs:

It is hereby declared that the impugned order Ex. 20 of the Disciplinary Authority removing the plaintiff from service is illegal and void and the plaintiff continues in service as Electric Fitter, in the service of Western Railways of the defendant. The plaintiff do recover from the defendant Rs. 9792-60 Ps. being the amount of arrears of salary from 17-4-71 to the date of this suit as per Schedule Ex. 35. The defendant is further ordered to reinstate the plaintiff to his original post of Electric Fitter with all the rights attached to it. The defendant shall bear their own costs and proportionate costs of the plaintiff's suit. Decree be drawn accordingly.

3. The misery of the petitioner did not end with this order of the Civil Court, because, though the petitioner was paid all the back wages for which he was out of service pursuant to the order of removal, it is his grievance that he was not reinstated and posted as required by the order of the Civil Court, but by an order of September 19, 1975 respondent No. 2 suspended the petitioner with retrospective effect from March 7, 1973. It is not clear why and for what justifying reasons the suspension order was made effective from a particular date viz.. March 7, 1973. It appears that the petitioner filed his objections to this suspension order by a written memorandum. However, a fresh show cause notice was issued by respondent No. 2 on March 15, 1976 as to why penally of removal should not be imposed on the petitioner. On April 3, 1976, the petitioner filed his reply stating in details the grounds on which, in his submission, the removal order should not be mide. No personal hearing was given to the petitioner and again by the present order of April 29, 1976, the second respondent removed the petitioner from the service on the same ground of misconduct and insubordination. The petitioner, therefore, again carried the matter in appeal before respondent No. 3 who, by his order of September 3/9, 1976 made a formal order dismissing the appeal of the petitioner. It is this order which is the subject matter of this petition before me.

4. At the time of hearing of this petition, Mr. I.C. Bhatt, learned Advocate appearing for the petitioner, raised following three grounds:

(1) Inasmuch as the inquiry Officer has relied upon the statements of Shri L.R. Parmar and C.S. Bhatnagar recorded on 14-4-71 and 15 4-71 respectively, which were neither recorded in presence of the petitioner nor in presence of the Inquiry Officer, the report of the findings based on these statements is vitiated as being violative of principles of natural justice and fair play.

(2) The suspension order is also bad in law, void and ineffective inasmuch as it was given a retrospective effect from March 7, 1973 so as to deprive the petitioner of all the benefits which were awarded to him under the decree of the Civil Court in Special Civil Suit No. 41 of 1974.

(3) In any case, the appellate order which is of September 3-9-1976, Annexure 'E' to the petition, is bad in law, inasmuch as the Appellate Authority has committed the same error in not reappraising the evidence by himself 'and stating the reasons as to why he considered the punishment to be adequate and, therefore, the order is violative of the mandatory provision contained in Rule 22 of the Railway Servants (Discipline & Appeal) Rules, 1968 which govern the present case.

5. I am of the opinion that this petition should be allowed on the short contention which has been urged on behalf of the petitioner and reproduced at point No. (3) above. The material part of Rule 22 which provides as to how an appeal is to be considered reads as under:

22. Consideration of Appeal - (1) In the case of an appeal against an order of suspension, the appellate authority shall consider whether in the light of the provisions of Rule 5 and having regard to the circumstances of the case, the order of suspension is justified or not and confirm or revoke the order accordingly.

(2) In the case of an appeal against an order imposing any of the penalties specified in Rule 6 or enhancing any penalty imposed under the said rule, the appellate authority shall consider:

(a) Whether the procedure laid down in these rules has been complied with, and if not, whether such non-compliance has resulted in the violation of any provisions of the Constitution of India or in the failure of justice:

(b) Whether the findings of the disciplinary authority are warranted by the evidence on the record; and

(c) Whether the penalty or the enhanced penalty imposed is adequate, inadequate or severe; and pass orders -

(i) confirming, enhancing, reducing or setting aside the penalty; or

(ii) remitting the case to the authority which imposed or enhanced the penalty or to any other authority with such directions as it may deem fit in the circumstances of the case.

The obligation entailed on the Appellate Authority as to what consideration should be borne in mind while disposing of the appeal has been provided in Rule 22. The rule appears, to be mandatory inasmuch as it enjoins the Appellate Authority that he shall consider whether the procedure laid down in the Rules has been complied with or not; whether the findings are warranted by the evidence on the record, and whether the penalty imposed or proposed to be imposed is cdt quote, Ir.adt quote or severe. In other words, the obligation prescribed by the Legislature in Rule 22 for the Appellate Authority is not merely to approach and consider the points raised in the appeal in a mere formal way but in the real spirit of the provisions made therein. It is not merely a formal order or a mere mechanical chanting of the provisions by the appellate Authority considering the appeal under the Rules. When the said Rule 22 requires the Appellate Authority to decide whether the findings under appeal are warranted by the evidence on the record or not, it postulates that the Appellate Authority himself has to appraise the evidence and decide whether a reasonable man would arrive at the same findings on the material on record. Similarly, when the provision enjoin the Appellate Authority to consider whether the penalty proposed or imposed is adequate, inadequate or severe, it pre-supposes that he must address himself to the various aspects of the question of penalty, whether having regard to the gravity of the offence, the circumstances pleaded in defence, the past records of the delinquent including number of years of service he has put in and the economic loss to which he and his family members would be exposed etc; and such other similar circumstances, and after giving an opportunity to the delinquent, if he wants to plead any extenuating circumstances, decide whether the penalty is adequate, inadequate or severe. In other words, he must consider all the relevant circumstances which have a bearing on the question of penalty and then decide about the adequacy or otherwise of the same for which he must give reasons in support of his opinion.

6. In Madhya Pradesh Industries Ltd. v. Union of India and Ors. 0044/1965 : [1966]1SCR466 , the Supreme Court considered whether it is essential for a revisional authority under the Mines and Minerals (Regulation and Development) Act, 1957 to state reasons for its decision. In that context Subba Rao J., speaking for the Court observed:.Even in the case of appellate Courts invariably reasons are given, except when they dismiss an appeal or revision in limine and that is because the appellate or revisional Court agrees with the reasoned judgment of the subordinate Court that there are no legally permissible grounds to interfere with it. But the same reasoning cannot apply to an appellate tribunal, for as often as not the order of the first tribunal is laconic and does not give any reasons. That apart, when we insist upon reasons we do not prescribe any particular form or scale of the reasons. The extent and the nature of the reasons depend upon each case. Ordinarily, the appellate or revisional tribunal shall give its own reasons succinctly, but in a case of affirmance where the original tribunal gives adequate reasons, the appellate tribunal may dismiss the appeal or the revision, as the case may be, agreeing with those reasons. What is essential is that reasons shall be given by an appellate or revisional tribunal expressly or by reference to those given by the original tribunal. The nature and the elaboration of the reasons necessarily depend upon the facts of each case....

7. Similarly in Bhagat Raja v. Union of India and Ors. : [1967]3SCR302 , the Supreme Court was speaking in the context of revisional powers of the Central Government under Rule 55 of the Mineral Concession Rules, 1960. Mitter J., speaking for the Court in that case held:

Let us now examine the question as to whether it was incumbent on the Central Government to give any reasons for its decision on review. It was argued that the very exercise of judicial or quasi judicial powers in the case of a tribunal entailed upon it an obligation to give reasons for arriving at a decision for or against a party. The decisions of tribunals in India are subject to the supervisory powers of the High Courts under Article 227 of the Constitution and of appellate powers of this Court under Article 136. It goes without saying that both the High Court and this Court are placed under a great disadvantage, if no reasons are given and the revision is dismissed curtly by the use of the single word 'rejected', or 'dismissed'. In such a case, this Court can probably only exercise its appellate jurisdiction satisfactorily by examining the entire records of the case and after giving a hearing come to its conclusion on the merits of the appeal. This will certainly be a very unsatisfactory method of dealing with the appeal. Ordinarily in a case like this, if the State Government gives sufficient reasons for accepting the application of one party and rejecting that of the others, as it must, and the Central Government adopts the reasoning of the State Government, this Court may proceed to examine whether the reasons given are sufficient for the purpose of upholding the decision. But when the reasons given in the order of the State Government are scrappy or nebulous and Central Government makes no attempt to clarify the same, this Court, in appeal, may have to examine the case de novo without anybody being the wiser for the review by the Central Government. If the State Government gives a number of reasons some of which are good and some are not, and the Central Government merely endorses the order of the State Government without specifying those reasons which according to it are sufficient to uphold the order of the State Government, this Court, in appeal, may find it difficult to ascertain which are the grounds which weighed with the Central Government in upholding the order of the State Government. In such circumstances, what is known as a 'speaking order' is called for....

It would be noted that the Supreme Court was speaking in the context of those Rules which do net in teircs prescribe any obligation for the review or Appellate Authority. As far as the present case is concerned, new Rule 22 which is corresponding to old Rule 1731 of the Railway Establishment Code prescribes an obligation on the appellate Authority as to what aspects he would consider before disposing of the appeal, and the two aspects which have a bearing so far as the present petition is concerned are that the Appellate Authority has to decide whether the findings of the Competent Authority were warranted on the facts and in the circumstances of the case and also to decide whether the penaly was adequate, inadequate or severe. The requirement of considering these aspects necessarily imply that the Appellate Authority must record its reasons as to how in its opinion the evidence justifies the conclusion of the Competent Authority and the punishment was adequate, inadequate or severe on the material before it. The requirement of adequacy of penalty entails in its turn the requirement of all the relevant aspects as indicated by me above before the Appellate Authority can conclude about the adequacy or otherwise of the punishment. In the context of the old Rule 1731 of the Railway Establishment Code, a Division Bench of Allahabad High Court in Debi Deen v. The Divisional Operating Superintendent, Northern Railway, Moradabad and Ors. (1978) IV S.L.R. 125 held that even though the rule did not provide in express terms for reasons being given, the same appeared to be necessarily implied in the language of the rule, and the very requirement that the appellate Authority is to consider whether the finding recorded by the punishing authority is justified shows that the appellate authority has to appraise the evidence for itself in order to confirm or reverse the findings recorded by the punishing authority which necessarily implies the giving of reasons and the rule would not be sufficiently complied with unless the reasons have been given. I am in respectful agreement with the view of the Division Bench in Deb Deen's case (supra). This petition should therefore, be allowed on this short contention. However, it is necessary for me to decide the second contention at this stage, namely, whether the suspension order was valid or not. It should be recalled that in Special Civil Suit No. 41 of 1974 the learned Civil Judge had granted a decree in favour of the petitioner directing the Railway Administration of the Western Railways to reinstate him in the service with all the back wages as the learned Civil Judge quashed and set aside the earlier order of removal from service dated 1st March 1973. It was really ingenious for the Railway Administration that immediately after the aforesaid decree of the Civil Court, it decided to implement that order by paying him back wages and in the next breath to deprive the petitioner of that benefit virtually by putting him under suspension with retrospective effect from 7-3-1973. To say the least, this is hardly the way of respecting decrees and writs of Courts. I can appreciate that the petitioner may be placed in suspension prospectively but to put him under suspension in 1975 with retrospective effect from March 1973 is merely a camouflage to deprive the petitioner of the benefits awarded to him under the decree. Apart from this, Rule 5 Sub-rule (4) of the Railway Servants (Discipline & Appeal) Rules, 1968 deals with a situation like the present one where an order of removal is set aside and declared void by a Court of law. Sub-rule (4) reads as under:

(4) Where a penalty of dismissal, or removal or compulsory retirement from service imposed upon a railway servant is set aside or declared or rendered void in consequence of or by a decision of a court of law and the disciplinary authority ' on consideration of the circumstances of the case, decided to hold a further inquiry against him on the allegations on which the penalty of dismissal, removal or compulsory retirement was originally imposed the railway servant shall be deemed to have been placed under suspension by the competent authority from the date of the original order of dismissal, removal or compulsory retirement and shall continue to remain under suspension until further orders.

The deemed suspension which is made effective from the date of the original order of removal under Sub-rule (4) presupposes the decision of the Disciplinary Authority to hold a further inquiry against the delinquent on the same allegations on which the earlier order of removal was passed on consideration of circumstances of the case. Now, in the present case, it has nowhere been shown that the Disciplinary Authority has fulfilled this requirement of the consideration of the circumstances of the case which, in his opinion, made it necessary to hold a further inquiry on the same allegations. In my opinion, therefore, Sub-rule (4) of Rule 5 would not be of any assistance to the cause of the Railways. No other provision has been pointed out to me which empowers the Railway Administration to put a railway employee under suspension retrospectively in case where the earlier order of penalty of dismissal; removal or retirement is set aside by the Court. In that view of the matter, the order of suspension is bad in law and void; and the said suspension order is virtually contrary to the decree and is tantamount to reversing the decree.

8. So far as the first contention is concerned, since I am inclined to set aside the appellate order, it will be open to the petitioner to raise that contention before the appellate Authority.

9. The result is that this petition is allowed and the Appellate order of September 3/9,1976, Annexure 'E' to the petition is quashed and set aside as well the order of suspension of September 19,1975 Annexure 'A' to the petition is also quashed and set aside. The matter shall go back to the Appellate Authority who will dispose of the appeal according to the correct principles of law as indicated in this order. Rule is made absolute accordingly with costs.


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