Skip to content


The Union of India (Uoi) Vs. Ramgopal Tanwar - Court Judgment

LegalCrystal Citation
SubjectService;Constitution
CourtRajasthan High Court
Decided On
Case NumberFirst Appeal No. 19 of 1966
Judge
Reported inAIR1972Raj196; 1971(4)WLN560
ActsLimitation Act, 1908 - Sections 102; Constitution of India - Article 311(1); Railway Establishment Code - Rule 1712
AppellantThe Union of India (Uoi)
RespondentRamgopal Tanwar
Appellant Advocate Bhojraj Jain, Adv.
Respondent Advocate M.B.L. Bhargava and; S.N. Bhargava, Advs.
DispositionAppeal partly allowed
Cases ReferredUnion of India v. K. Rajappa Menon
Excerpt:
civil services salary - limitation--suit for arrears of salary beyond 38 months--held, is barred by limitation.;the plaintiff's suit for arrears of salary beyond a period of 38 months from the date of suit is barred by time.;(b) civil services - production of document--plaintiff alleging appointment in the state service--held to prove appointment.;it was for the plaintiff to prove that he was appointed in the state service by the general manager. plaintiff did not produce the formal service agreement which must have been signed by him according to the aforesaid circular.;(c) civil services and constitution of india - article 311(1)--general manager issues directions to head of department to offer employment to plaintiff--whether general manager is appointing authority.;the actual offer of.....c.b. bhargava, j.1. this appeal by the union of india and cross-objections by the plaintiff are directed against the judgment and decree of the senior civil judge, ajmer dated 29th october, 1965, by which plaintiff's suit for recovery of arrears of salary amounting to rs. 14895/- was decreed but the rest of his claim for declaration that his removal from service by the loco works manager, ajmer was illegal and inoperative and that he still continued in railway service was dismissed.2. plaintiff ramgopal joined service in the b. b. and c. i. railway on 10th july, 1940, as a temporary fitter to which post he was confirmed on 28th january, 1941. he was temporarily promoted as a tool issuer on 15th july, 1946, and was confirmed in that post by the works manager, loco, on 23rd october, 1946......
Judgment:

C.B. Bhargava, J.

1. This appeal by the Union of India and cross-objections by the plaintiff are directed against the judgment and decree of the Senior Civil Judge, Ajmer dated 29th October, 1965, by which plaintiff's suit for recovery of arrears of salary amounting to Rs. 14895/- was decreed but the rest of his claim for declaration that his removal from service by the Loco Works Manager, Ajmer was illegal and inoperative and that he still continued in railway service was dismissed.

2. Plaintiff Ramgopal joined service in the B. B. and C. I. Railway on 10th July, 1940, as a temporary fitter to which post he was confirmed on 28th January, 1941. He was temporarily promoted as a tool issuer on 15th July, 1946, and was confirmed in that post by the Works Manager, Loco, on 23rd October, 1946. On 9th April, 1953, he was removed from service by the order of the Works Manager, Loco on the charge of removing castor oil from the railway. The plaintiff challenged the order of his removal in civil suit No. 133 of 1956 and the first appellate court holding that the report of the inquiry committee was not supplied to him in spite of his demand set aside the order of his removal as he had not been given reasonable opportunity of defending himself as envisaged under Article 311 of the Constitution of India. It was further declared that the plaintiff still continued to be in the service of the said railway. Plaintiff was re-instated on 29th June, 1961, on the post of tool issuer, but on 3rd July, 1961 when he resumed duties he was again suspended and copy of the findings of the inquiry committee was supplied to him and further disciplinary proceedings were taken and eventually on 22nd July, 1961, the Works Manager, Loco again passed an order of his removal from service. This led the plaintiff to institute the present suit in forma pauperis.

It was alleged in the plaint that the inquiry held against him was not proper and that he was not given reasonable opportunity to defend himself. It was alleged that the Works Manager, Loco, was not competent to remove him from service because on the assumption of management of the B. B. and C. I. Railway by the State, his appointment was made by the General Manager and as such no authority inferior in rank to that of the General Manager could remove him from service. The order of removal was also challenged on the ground that it did not give reasons for rejecting his defence and the order of his removal from service thus deprived him of his right of effective appeal against the said order of removal.

3. The lower court framed a number of issues of which issues Nos. 1 and 3 were as under:--

1. Is the plaintiff entitled to get Rs. 14895/- on account of pay and allowances for the period from 9-4-53 to 2-7-61?

3. Is the order dated 22-7-61 removing the plaintiff from service void, illegal and inoperative for reasons given in para. 6 of the plaint?

4. After trial, the lower court came to the finding that the order of removal of the plaintiff from service was not violative of Article 311 of the Constitution of India and was quite valid. It also held that the Works Manager, Loco, was competent to remove him from service. It further found that the plaintiff was not prejudiced in his right of preferring appeal against the order of his removal from service because no reasons were mentioned in it. The court, however, passed a decree in his favour for the arrears of salary amounting to Rs. 14895/-. In the appeal preferred by the Union of India, it is contended that the plaintiffs claim for arrears of salary beyond a period of 38 months prior to the institution of the suit is barred by limitation. Reliance is placed on a judgment of this Court reported as State of Rajasthan v. Ratan Lal Sogani, 1970 Serv LR 87 = (AIR 1971 Raj 142) and the judgment of the Supreme Court in Jai Chand Sawhney v. Union of India, 1969 Serv LR 879 (SC).

In the first case it was held that Article 102 of the Limitation Act of 1908 is applicable to a suit for recovery of arrears or salary. It was also held that the salary became due at the end of each month and not after the order of termination is set aside either departmentally or by the court. The Supreme Court also in the above noted decision took the same view and did not accept the other view expressed by the Madras High Court in State of Madras v. A. V. Anantharaman, AIR 1963 Mad 425. The Madras High Court in the aforesaid decision took the view that the pay and allowances of the public servant who is dismissed or removed from service cease from the date of such dismissal or removal and the right to recover arrears of salary accrues to him only when the order of dismissal or removal is set aside either in a departmental appeal or by a civil court.

The Supreme Court did not accept this view and observed:

'When the order of dismissal or removal is set aside by the Court on the ground of failure to afford the constitutional protection, the order is declared invalid ab initio, i.e., as if it in law never existed, and the public servant concerned was unlawfully prevented from rendering service. If that be the correct view, salary due to the public servant concerned must be deemed to have accrued month after month because he had been wrongfully prevented from rendering service. The period of limitation under Article 102 commences to run when the wages 'accrue due', and wages accrue due when in law the servant becomes entitled to wages. Rule 2042 of the Railway Establishment Code merely provides that 'the pay and allowances of a railway servant who is removed or dismissed from service cease from the date of the order of removal or dismissal'. That rule does not operate to make the wages accrue due on the date of the institution of the suit. If the order of dismissal is set aside the public servant is deemed to be in service throughout the period during which the order of dismissal remained operative, and his right to sue for salary arises at the end of every month in which he was unlawfully prevented from earning the salary, which he could, but for the illegal order of dismissal have earned.'

5. Learned counsel for the respondent however relies on Divisional Supdt., N. Rly., Allahabad v. Pushkar Dutt Sharma, 1965 All WR 274 (SC). In that case the Supreme Court was dealing with the second proviso to Section 15(2) of the Payment of Wages Act which permits an application under Section 15(2) to be made after six months if the applicant satisfied the authority that he had sufficient cause for not making the application within such period. In that case the applicant's suit had been dismissed by the appellate court which held that his dismissal was justified and valid. But his second appeal was allowed and in such circumstances the authority held that there was sufficient cause within the meaning of the second proviso to present the application after the prescribed period. The Additional District Judge confirmed the order and the High Court of Allahabad also refused to interfere in its revisional jurisdiction and the Supreme Court also declined to interfere with the said order in its jurisdiction under Article 136 of the Constitution of India.

In the course of its judgment, the Supreme Court observed that:

'It was only when the second appeal was allowed that the respondent had a cause of action.'

The learned Attorney General in that case told the court that there was difference of judicial opinion on the question whether in such a case it would have been competent to the respondent to move the authority under Section 15(2) when his claim had been dismissed by the appellate court But the Supreme Court did not go into the question further as it was unnecessary in the circumstances of the case. The above observation should therefore be read in the light of the facts of the case. But subsequently the court examined this question in 1969 Serv LR 879 (SC) (supra) and as stated earlier disagreed with the view of the Madras High Court. In view of the aforesaid decision of this Court and the Supreme Court, I hold that the plaintiffs suit for arrears of salary beyond a period of 38 months from the date of suit is barred by time. But the plaintiff has claimed arrears of salary upto 2nd July, 1961 only. He can therefore, get arrears of salary from 7-6-59 to 2-7-1961, which comes to Rs. 4256/-. The appeal is, therefore, partly allowed to this extent and the rest of his claim is dismissed.

6. In the cross-objections on behalf of the plaintiff, two points have been urged (1) that the Works Manager, Loco, was not competent to remove the plaintiff from his service because from 1-1-42 on the taking over of the B. B. and C. I. Railway by the State, he was re-employed by the General Manager who was the superior officer to the Works Manager, Loco, (2) because the order of removal dated 22-7-1961 did not give any reasons and consequently plaintiff was deprived of his valuable right of effective appeal.

7. For the first contention, it is urged that the management of the B. B. and C. I. Railway was taken over by the State from 1-1-42 and thereupon the Agent and General Manager issued Circular No. 12E/402/40 of 28th April, 1941, by which heads of departments were requested to make or arrange to make through their District Officers, a formal order of service under the Government on the terms appended to the Circular to each member of the permanent staff employed in their respective departments on the form subjoined and each member of the staff to whom a formal offer of service under the Government is made should be required to come to a decision as to whether he accepts the offer in which event he should sign a letter of acceptance within 30 days of the receipt of the offer, and each member of the staff who accepted the offer of re-employment was required to sign a for-mat service agreement.

8. In pursuance or this circular of the General Manager, the Head of the Department issued a letter to the plaintiff which was accepted by him and thus he was re-employed in the State service by the orders of the General Manager and as such he should be deemed to have been appointed by the General Manager in the State owned railway.

9. According to Article 311(1) of the Constitution, no person in the civil service of the Union shall be dismissed or removed by any authority subordinate to it by which he was appointed. It was for the plaintiff to prove that he was appointed in the State service by the General Manager. Plaintiff did not produce the formal service agreement which must have been signed by him according to the aforesaid circular. He also made no attempt to get the letter which was issued to him by the head of the department or the district officer and to which he had conveyed his acceptance produced from the defendant. The defendant also did not produce the original letter which was issued to the plaintiff for his employment on behalf of the Government of India. However, the letters of acceptance of other employees addressed to the Works Manager, Loco Shops Ajmer Exs. A-3, A-4, A-5 and A-6 were produced and the plaintiff admitted that he had also addressed a letter in similar form. It was also admitted that he did not receive any letter of the General Manager addressed to him. It therefore appears that the letter of his re-employment must have been issued to the plaintiff by the Works Manager, Loco, because Exs. A-3, A-4, A-5 and A-6 are also addressed by him to the employees.

10. The question, therefore, is whether the plaintiff's reappointment in the State Railway should be deemed to have been made by the General Manager or by the Works Manager, Loco, who actually offered him re-employment though under the authority of the Agent and General Manager on the prescribed form.

11. In this connection, learned counsel strongly relies on a judgment of a single Judge of this Court in Makhan Lal v. State, 1959 Raj LW 644 = (AIR 1959 Raj 214). This was a case under the Prevention of Corruption Act, and the question was whether sanction for prosecution had been given by competent authority. It was also a case of an employee of the B.B. and C. I. Railway and the contention was that on 1-1-1942 the employee should be deemed to have been re-employed by the General Manager. The learned Judge with reference to the Circular of 28th April, 1941, and the letters issued by the Heads of Departments, in pursuance of that circular, observed:--

'It was the Agent and General Manager who issued Circular No. 12-E/402/40of the 28th April, 1941 to the Heads ofDepartments to make, or arrange to makethrough their District Officers, a formaloffer of service under the Government.Simply because instead of making a formaloffer of service himself, the then Agentand General Manager of the B.B. and G.I. Railway, asked the Heads of Departments to make such offer either themselvesor through their District Officers, it doesnot follow that the Heads of Departments or District Officers wereauthorised by the Government of India toappoint the ex-employees of the B.B. andC. I. Railway to service under the Government. The utmost that can be said isthat the appointment was made by theAgent and General Manager.'

Since the sanction for prosecution in that case was given by the Regional Traffic Superintendent who was lower in rank than the General Manager, the learned Judge held that such sanction was not valid. The learned Judge in support of his contention relied on Md. M. Qidwai v. G. G. In Council, AIR 1953 All 17. But in that case, the service of the plaintiff who was the employee of R. K. Railway was terminated from the mid-night of 31st December 1942, and he was then given a new appointment in the O. T. Railway in the same post by the then General Manager of the B. N. W. Railway and the R. K. Railway on behalf of and on authority of the Government of India. In these circumstances it was held that this new appointment was made by the General Manager who issued the letter dated 18-9-42. It was thus a case where the offer of new appointment was made by the General Manager himself and not by the Head of the Department or the District Officer as in the case of B. B. and C. I. Railway. Further in the Allahabad case, the services of the employees in the old Railways were terminated and a fresh appointment was also made, whereas in the case of the employees of B. B. and C, I. Railway, their services were not terminated. This case, therefore, was clearly distinguishable from the facts of the Rajasthan case with which the learned Judge was concerned.

12. As already stated, plaintiff in this case has admitted that he did not receive any letter of fresh appointment from the General Manager. On the other hand, it can be inferred from the plaintiffs statement that he also conveyed his acceptance of re-employment to the Works Manager, Loco, who must have made the offer to him. In my view, the actual offer of re-employment in the case of the employees of the B. B. and C. I. Railway was made either by the Heads of Departments or the District Officers and not by the General Manager himself. In the Circular of 28th April, 1941, only directions have been issued by the General Manager to the Heads of Departments to make a formal offer of service to the employees. This does not amount to making an appointment. It is the Head of the Department or the District Officer who actually made the offer and received the acceptance who can be said to have made the offer. With great respect, I am unable to agree with the view taken in 1959 Raj LW 644 = (AIR 1959 Raj 214) (supra). It is one thing to issue a direction and quite another to make an appointment.

13. The Bombay High Court in the Union of India v. Arnold Pearce in Appeal No. 583 of 1968, D/- 6-8-1969 (Bom), also came to the same conclusion, but there the learned Judges in support of their conclusion relied on certain circulars of the Railway Board issued in this connection to explain the position in the case of the employees of the B. B. and C. I. Railway. I am, however, of the view that it is not necessary to reach that conclusion to press into service the circulars issued by the Railway Board and even independently of those circulars it can be held that the appointment was made by the authority who offered re-employment though in pursuance of the directions given in the circular.

14. Learned counsel for the Union of India has placed a certified copy of the judgment of the Bombay High Court on the record where the learned Judges observed:--

'As stated in the said earlier circulars the actual offers of employment in case of B. B. and C. I. Railway were made by the Heads of Departments and not by the General Manager. It must, therefore, be held that on a correct reading of the said circular the Heads of Departments in case of employees of Ex. B. B. and C. I. Railway were the appointing authorities and as such competent to pass any of the said penalties.'

In Ishwar Narain Sinha v. Union of India, AIR 1957 All 489 where the Medical Officer was confirmed by the Chief Medical Officer under the orders of a higher authority i.e., the General Manager, it was held that the confirming authority should be deemed to be the person who had actually issued the letter of confirmation. The general directions relating to the manner in which confirmation is to be ordered is one thing, hut the confirmation of an individual servant from a particular date in compliance with those general directions is another matter and the officer who does the latter part of the work, if authorised, should be taken to be confirming officer, and as such the appointing authority for tile purpose of Article 311(1) of the Constitution.

15. In Gangadhar Pandey v. Union of India, AIR 1964 Pat 102 the Traffic Manager of a railway sent a letter to the District Traffic Superintendent for appointing selected candidates including plaintiff as A.S.M. Copy of this letter was not sent to the plaintiff. The District Traffic Superintendent under his signature issued appointment order and posting order to plaintiff as temporary A.S.M. at a certain station with a copy to plaintiff. It was held that the District Traffic Superintendent must be held to be the appointing authority of the plaintiff.

16. In Rama Iyer v. Union of India, AIR 1957 Ker 1, it was also held in the case of a railway employee of the S. I. Railway Company which was taken over by the Government of India as a going concern that the appointing authority after the taking over was the District Operating Superintendent and not the General Manager, and, therefore, the order of removal passed by the former was not invalid. The decision of the Allahabad High Court in AIR 1953 All 17 (supra) was distinguished on the ground that there the prior appointment was terminated and a fresh appointment had followed.

17. There is, therefore, ample authority in support of the view that in a case like the present the General Manager is not the appointing authority, but it is that officer who actually appointed him to the post. It is not disputed that if the General Manager is not held to be the appointing authority in the case of the plaintiff, the Works Manager, Loco, was competent to remove him from service. I, therefore, do not find any force in the first contention and accordingly hold that the plaintiff was not removed from service by any authority lower than that which had appointed him.

18. As for the second contention, it may be mentioned that in para. 5 of the plaint, it was alleged that the Works Manager, Loco by his order dated 3rd July, 1961, again placed the plaintiff under suspension from the afternoon of 3rd July, 1961, and eventually by a one-sentence order dated 22nd July, 1961, of the Loco Works Manager he was again removed from service without giving any reason or ground at all on the basis whereof the decision to remove had been arrived at and the plaintiff's defence disbelieved. In para. 6 (2) it was alleged that the aforesaid order of removal dated 22nd July, 1961, is void, illegal and inoperative because the plaintiff was deprived of his valuable right of an effective appeal on account of removal order not stating the grounds and reasons therefor and thus the said removal order stands vitiated.

19. The defendant gave the following reply to para 5 of the plaint:

'5 (a). With reference to para 5 of the plaint it is admitted that the plaintiff was placed under suspension with effect from the afternoon of 3rd July, 1961, by the Works Manager, Loco, Ajmer.

(b) The Works Manager, Loco, Ajmer issued a notice of provisional decision for removal from service dated 3-7-61. With this notice copies of complete proceedings and findings of the Enquiry conducted in January 1953 by the Assistant Mech. Engineer (Gen.) and Asstt. Personal Officer, Ajmer were supplied to the plaintiff.

(c) With reference to notice dated 8-7-1961, the plaintiff submitted a detailed reply dated 10th July 1961.

(d) The Works Manager, Loco, after considering the defence of the plaintiff dated 10th July, 1961, and other relevant records ordered the removal of the plaintiff from service with effect from 22nd July, 1961.'

20. For para 6 (2) of the plaint, the following reply was made:

'Sub-para II is wrong and denied. The orders of removal were communicated to the plaintiff vide letter No. E/R/858 Part I dated 22-7-1961. The plaintiff preferred an appeal dated 10-8-61 against these orders of removal from service. The plaintiff did in fact exercise his right of appeal.'

No issue was framed on the allegation made by the plaintiff in para No. 5 of the plaint. Issue No. 3 only related to the objections made in para. 6 of the plaint. However, learned counsel for the plaintiff referred to the order of imposition of penalty Ex. 4 which is as under:--

'1. You are hereby informed that in accordance with the orders passed by me, the following penalty has been awarded to you: Removal from service from the date of issue of this Notice.

2. You are required to acknowledge receipt of this Notice on the form subjoined.'

It is contended that the above order does not at all show that the punishing authority considered the explanation furnished by the plaintiff to the show-cause notice, nor does it indicate the reasons which influenced the mind of the authority to come to the above decision. It is contended that the punishing authority in passing the order of removal was acting as quasi-judicial authority and as such it should have made an independent judicial approach to ascertain the truth of the allegations made against the plaintiff. The fact that an appeal is provided under the Railway Rules against the order of the punishing authority further made it incumbent upon it to give reasons for its order so that the appellate authority might have been able to make a proper appraisal of the evidence for itself to see (a) whether the facts on which the order was passed had been established, (b) whether the findings are justified and (c) whether the penalty imposed is excessive, adequate or inadequate as provided in Rule 1731 of the Discipline and Appeal Rules. It is further contended that Rules 1712 and 1716 of the aforesaid Rules cast a duty upon the punishing authority to give reasons for its finding that the explanation offered by the employee is unsatisfactory. Since the punishing authority in the present case did neither consider the plaintiff's explanation given in defence nor did it give reasons for ordering the removal of the plaintiff from service, the order stands vitiated. The contention does not appear to be without force.

20. Undoubtedly the reasonable opportunity envisaged to the delinquent officer by the provision of Article 311(2) includes an opportunity to make a representation against the proposed punishment. In his representation, the delinquent officer can challenge the validity and propriety of the proposed punishment as also its quantum. The right to make a representation is not an empty formality and the punishing authority has to give due consideration to it before it imposes punishment on the delinquent officer.

21. So far as Ex. 4 is concerned, there is no doubt that it does not contain reasons for the order nor does it appear from it that the punishing authority had applied its mind to the explanation given by the plaintiff in response to the showcause notice. There can also be no doubt that the punishing authority in the exercise of its quasi-judicial powers was bound to make a judicial approach to the question and should have given reasons for its decision particularly when its order was subject to appeal to a higher authority. Throughout the proceedings in the lower court, the defendant did not indicate that there existed a separate order of the punishing authority wherein plaintiff's explanation had been considered and reasons for the decision had been given. On the other hand, its contention before the lower court was that it was not mandatory for the punishing authority to give separate reasons for the order. It is only in this Court that an application was made to admit a separate order which is said to have been passed by the punishing authority in this case and on the basis of which Ex. 4 was issued in the prescribed form to the plaintiff. This application was, however, rejected for the reasons mentioned in the order and on the materials available on the record there is nothing except Ex. 4 to show that the punishing authority considered the plaintiffs defence or gave reasons for its decision. For this situation defendant itself is responsible.

22. In Debi Deen v. D. O. Supdtt. Northern Railway, AIR 1968 All 355 (2), it was held that;

'Even though Rule 1731 does not provide in express terms for reasons being given, the same appears to be necessarily implied in the language of the rule. 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. This necessarily implies the giving of reasons. There can be no sufficient compliance with the requirements of Rule 1731 (2) unless reasons have been given.'

23. In Rajinder Pal v. State of Punjab, 1971 Serv LR 130 = (AIR 1971 Punj 290), it was also held that the order of removal from service should be a speaking order indicating process of reasoning.

24. In P. J. Joseph v. Supdt. of Post Offices, AIR 1961 Ker 197, it was held:

'The order of an administrative authority inflicting punishment on the employee is not of an administrative nature but a quasi-judicial one which is required to be a 'speaking' order, i.e., one giving reasons for it so as to tell the superior authority why the inferior authority made that order, and the absence of reasons in it is fatal to its legality.'

25. Learned counsel for the Union of India however contends that the punishing authority in the present case was the same which had already come to a tentative decision and had issued notice to the plaintiff to show cause why he should not be removed from service vide Ex. A-16. This notice was given after the punishing authority had considered the report of the departmental inquiry committee copy of which was also supplied to the plaintiff. Therefore no prejudice has been caused to the plaintiff if the same authority did not give reasons in Ex. 4 for the removal of the plaintiff from service. Reliance is placed on State of Madras v. Srinivasan, AIR 1966 SC 1827, Union of India v. K. Rajappa, AIR 1970 SC 748 and Sayad Ashan Ali v. Union of India, 1970-1 Lab LJ 567 (Orissa). It is true that a notice of provisional decision to impose penalty of removal from service was given to the plaintiff by the Works Manager, Loco, after considering the report of the departmental inquiry committee. But after the said notice, plaintiff submitted his explanation Ex. A-18 wherein he challenged the findings of the inquiry committee on points of law as well as of facts. Both under the railway Rules 1712 and 1716 as well as on the principles of natural justice, it was incumbent upon the punishing authority in exercise of its quasi-judicial functions to give due consideration to the explanation submitted by the plaintiff and to give reasons for its rejection and its final decision for the removal of the plaintiff from the service. The cases relied upon by the learned counsel are distinguishable.

26. In AIR 1966 SC 1827 (supra), the Government after it had received the explanation of the delinquent officer in response to the show-cause notice sent the matter for the advice of the Public Service Commission. The Public Service Commission had observed that the officer's reply to show cause notice was unconvincing and that the proposed penalty for compulsory retirement was justified in the circumstances. After the report of the Public Service Commission was received, the State Government passed an order of compulsory retirement from service of the officer and stated in its order: 'the Government have carefully considered the explanation submitted by the accused officer in consultation with the Madras Public Service Commission'. Then the summary of the advice given by the P. S. C. was given and it was stated that the Government agreed with the P.S.C. Therefore it is clear from the above order that in that case the Government had carefully considered the explanation submitted by the accused officer and after giving the summary of the advice given by the P. S. C. had indicated that it agreed with it. As already stated, Ex. 4 does not indicate that the punishing authority considered the explanation given by the plaintiff nor does it give the reasons for its decision.

27. Union of India v. K. Rajappa Menon, AIR 1970 SC 748 (supra) is regarding Rule 1713 of the Railway Servants Conduct and Disciplinary Rules, which requires that the disciplinary authority shall, if it is not the inquiry authority, consider the record of the enquiry and should proceed to give its findings on each charge. It does not relate to the final order passed by the disciplinary authority but concerns the order passed before the show-cause notice was issued. In this case also the notice expressly stated that the Chief Commercial Superintendent agreed with the findings of the inquiry officer that all the charges mentioned in the charge-sheet had been established and so the Court came to the conclusion that the rule had been substantially complied with.

28. In 1970-1 Lab LJ 567 (Orissa) (supra) on the authority of AIR 1966 SC 1827 (supra), it was held that no obligation is cast on the authority to record its reasons in every case. But as already stated, the Supreme Court case, AIR 1966 SC 1827, is clearly distinguishable on facts. As for the consideration of the explanation by the punishing authority it was found in the above case on facts that the petitioner's explanation was duly considered.

29. Thus the above decisions do not lay down that the punishing authority can pass an order of removal from service without even considering the explanation submitted by the delinquent employee in response to the show-cause notice.

30. It was contended on behalf of the defendant that the plaintiff was in no way prejudiced in exercising his right of appeal against the order of the punishing authority because in the grounds of appeal he did not take objection that his explanation was not considered, but this is not so. Paragraph 7 of the grounds of appeal Ex. A-20 is as under:--

'I also submitted defence explanation to the W. M. (L)'s provisional decision but it appears that the case had already been prejudiced and in the determination to maintain the official prestige he did not give any consideration to my most weighty arguments and imposed the same old penalty of removal from service once again.'

This shows that the plaintiff clearly brought to the notice of the appellate authority that the penalty of removal from service was passed without any consideration of his explanation. The order of the appellate authority Ex. A-21 is also cryptic. It only says that the 'Dy. C. M. E. (W) Ajmer has considered your appeal quoted above and has rejected the same.' It also does not show whether plaintiff's objection mentioned in paragraph 7 of the grounds of appeal was also given any consideration by the appellate authority. In view of the fact, therefore, that the order Ex. 4 does not contain the reasons and does not show that the explanation offered by the plaintiff in response to the show-cause notice was considered, the order of his removal from service stands vitiated and the plaintiff will still be deemed to be in service of the Railway.

31. The result, therefore, is that the defendant's appeal is partly allowed and the decree passed by the lower court as regards the arrears of salary is modified. The plaintiffs suit is decreed only for the sum of Rs. 4256/-. Plaintiffs cross-objection is also allowed and it is declared that the order of the Works Manager, Loco, dated 22nd July, 1961, removing the plaintiff from service is void, illegal and inoperative and it is further declared that he still continues to be in the Railway Service. In the circumstances, both parties shall bear their own costs of the appeal and the cross-objection.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //