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Lekhram Saini Vs. Union of India (Uoi) - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtRajasthan High Court
Decided On
Judge
Reported in(1969)ILLJ382Raj
AppellantLekhram Saini
RespondentUnion of India (Uoi)
Cases ReferredUnion of India v. H.C. Gael
Excerpt:
- - your wishes in this connexion should be clearly stated while submitting your defence. he also urged that the framing of a charge in such a manner shows that the conduct of the delinquent officer was prejudged by the disciplinary authority and such a chargesheet, therefore, was not in consonance with the provisions of article 311 of the constitution which provides certain safe grounds to the government servant, sri lodha's contention is that in accordance with the provisions of article 311(2) of the constitution the disciplinary authority cannot form any opinion about the punishment to be inflicted to the delinquent officer before the conclusion of the enquiry and, therefore, the chargesheet on the basis of which the enquiry into the alleged charges is initiated should not mention.....tyagi, j.1. this writ application has been filed by lekhram saini under article 226 of the constitution of india and it arises out of the following circumstances.2. the petitioner at the relevant time, that is, on 11 december 1960. was posted at abu road and he was incharge of the special squad of the travelling ticket examiners (t.t. es.) which was working directly under the chief commercial superintendent. it is alleged that a marriage party of the son of one murarilal, who was a sweet-vendor at abu road station, took 32 down janta express from abu road to delhi, and the petitioner lekhram also took that train for checking purposes along with two other scheduled travelling ticket examiners. the petitioner checked two members of the marriage party at sirohi road who did not hold any.....
Judgment:

Tyagi, J.

1. This writ application has been filed by Lekhram Saini under Article 226 of the Constitution of India and it arises out of the following circumstances.

2. The petitioner at the relevant time, that is, on 11 December 1960. was posted at Abu Road and he was incharge of the special squad of the travelling ticket examiners (T.T. Es.) which was working directly under the Chief Commercial Superintendent. It is alleged that a marriage party of the son of one Murarilal, who was a sweet-vendor at Abu Road station, took 32 Down Janta Express from Abu Road to Delhi, and the petitioner Lekhram also took that train for checking purposes along with two other scheduled travelling ticket examiners. The petitioner checked two members of the marriage party at Sirohi Road who did not hold any tickets but it was found that they had boarded the train after informing the guard and, therefore, the petitioner prepared two excess fare tickets for these persons from Abu Road to Delhi and collected Rs. 44.50 from them. At Ajmer station the petitioner deposited that collection and he had a mind to drop down there, but, according to his version, he overheard somebody saying that they were joining the marriage party from there but they could not purchase the tickets. This prompted the petitioner to board the train once again for checking purposes and he succeeded to find out at the Kishangarh railway station ten persons going without tickets. He charged them and recovered Rs. 109.75 from them. Sri K.P. Bhattacharya, the scheduled travelling ticket examiner, was also detailed on that train for checking purposes but it is said that he did not make any recovery from that train up to Delhi. After Phulera the petitioner again detected one child travelling without ticket. He, therefore, charged Rs. 5 from the parents of that child who happened to be the members of the marriage party. Thereafter, the petitioner did not check the train any further and went to sleep in one of the compartments of that train. As a result of telephonic message received by the Deputy Minister, Railways, that the petitioner as a member of the special squad of the travelling ticket examiners was carrying a marriage party from Abu Road to Delhi, the train was checked by the staff of the Northern Railway at Delhi Junction and it was found that 25 persons belonging to the marriage party were not holding any tickets. They were consequently charged excess fare and three travelling ticket examiners of the Northern Railway collected Rs. 698 from the incharge of the marriage party. Thereafter, the Senior Commercial Officer (General) (for the sake of brevity to be referred hereinafter as the S.C.O.G.) issued a chargesheet dated 26 March 1962, with a statement of allegations to the petitioner. The petitioner in response to the said chargesheet wrote to the S.C.O.G. that before issuing the chargesheet the department got five enquiries done in this matter and, therefore, he should toe supplied the copies of the reports of the officers who conducted those enquiries in order to enable him to prepare his defence. This letter is Ex. 2 on the file. The S.C.O.G., thereupon, informed the petitioner that he cannot be supplied with the copies of the reports demanded by him as they have not been made the basis for framing the charge, nor have they been referred to in the chargesheet. The petitioner again wrote to the said officer that under Rule 1711 of the Discipline and Appeal Rules (D.A.R.) he should be supplied with the copies of the findings of the preliminary enquiries held by various authorities, or at least he should be allowed an inspection of those documents and permitted to take extracts thereof for his defence purposes, but it so appears that the department did not give any reply to the petitioner about this demand. Thereafter, an enquiry officer was appointed who conducted the enquiry and submitted his report to the S.C.O.G., which is Ex. 10 on the file. According to this report, the petitioner was found negligent in the performance of his duties in checking the 32 Down Janta Express on the night between 11 and 12 December 1960, but as there was no direct evidence to establish that the petitioner had deliberately undercharged the members of the marriage party of Murarilal, he was exonerated by the enquiry officer of the second charge of deliberately undercharging the marriage party. On receipt of this report, the S.C.O.G. issued second notice to the petitioner on 24 October 1964 to show cause why increments for two years with recruiting effect may not be stopped for the charge of negligence and thereafter it is said that the S.C.O.G. imposed this minor penalty on the petitioner. When the matter came to the notice of the General Manager, Western Railway, he did not agree with the findings of the enquiry officer and, therefore, on 19 February 1965, the petitioner received a memorandum from the office of the General Manager, purported to have been issued under Rule 1736 R.I., whereby the petitioner was informed that he was not adequately punished, as in the opinion of the General Manager the evidence on the record was sufficient to establish both the charges levelled against him. The petitioner was also informed by the said notice that the punishing authority committed an error in awarding him a minor penalty for the charges which, in the judgment of the General Manager, were of grave nature and entailed a major penalty, and, therefore. General Manager served the petitioner with the said notice requiring him to face a fresh enquiry. It was, however, made clear in that notice that the petitioner will get an opportunity to lead additional evidence, with particular reference to the documents that were not made available to him at the previous enquiry and he was also allowed to further cross-examine the witnesses already examined at the previous enquiry. The report of the second enquiry officer after holding a full-fledged enquiry was submitted to the General Manager on 1 September 1965. The finding recorded by the enquiry officer in this report was that the charge of neglect of duty was fully established against the petitioner but regarding the second charge of deliberately undercharging the marriage party it was observed that in the absence of any direct evidence it was difficult for him to hold the petitioner guilty of that charge. The General Manager, Western Railway, however, did not agree with the findings of the enquiry officer and after considering the evidence on the record, he came to a definite conclusion that both the charges were established against the petitioner and therefore he issued a second notice to the petitioner under the provisions of Article 311 of the Constitution to show cause why he should not be removed from the service for the charges proved against him. The petitioner submitted his representation in compliance with the said notice dated 17 November 1955 (Ex. 17). The General Manager, after considering the representation of the petitioner, issued an order on 15 January 1966 removing the petitioner from service on the charge of deliberately undercharging the marriage party and being negligent in his duties. It is this order that has been challenged by the petitioner by means of this writ application, after the appeal of the petitioner was rejected by the Railway Board.

3. A long reply has been filed on behalf of the respondents and along with it various documents relating to the enquiry have been filed by them in order to show that the enquiry has been conducted in accordance with the provisions of the rules relating to the D.A.R. (Discipline and Appeal Rules) and that the penalty imposed by the General Manager was in accordance with the provisions of the rules made under Article 310 of the Constitution.

4. Learned counsel for the petitioner has challenged the impugned order on the following four grounds, viz.:

(1) That the chargesheet Ex. 1 issued by the S.C.O.G. is not in accordance with the provisions of Article 311 and the rules made under the Constitution for holding an enquiry against the delinquent officer as the officer had proposed the punishment to remove the petitioner from service or to inflict any minor penalty specified in Rule 1707 of the State Railway Establishment Code, Vol. I, in case he was found guilty of the charges contained in the statement of allegations. This mentioning of penalty in the preliminary notice by which the enquiry was initiated by the authority, according to learned counsel, vitiated the entire enquiry as the petitioner had been prejudged by the authority issuing- the chargesheet and, therefore, the final order that was issued by the General Manager on the basis of this defective chargesheet also stands vitiated.

(2) That the petitioner had not been given adequate and reasonable opportunity to meet the charge because the railway authorities did not supply the petitioner with the copies of the reports of those enquiry officers who had conducted the enquiries prior to the issuing of the chargesheet Ex. 1 and that the petitioner was not allowed even the inspection of the relevant documents as demanded by him- vide Ex. 4 at p. 27 of the paper book.

(3) That the General Manager has erred in holding the petitioner liable for undercharging the marriage party of Murarilal without any evidence on the record. This finding, according to learned counsel for the petitioner, is based on no evidence and, therefore, it is liable to be struck down by this Court.

(4) That the General Manager had no jurisdiction to exercise his power of review under Rule 1736 of the State Railway Establishment Code, Vol. I, as long as the appeal of the petitioner was pending against the order of the S.C.O.G. stopping his two increments.

5. Sri Bhargava, appearing on behalf of the respondents, has contended that the enquiry has been conducted strictly in accordance with the rules pertaining to the Discipline and Appeal Rules and that if any defect has crept in the chargesheet given to the petitioner it cannot go to vitiate the entire proceedings because the petitioner was given a second notice in accordance with the provisions of Article 311(2) of the Constitution and, therefore, the defect in the chargesheet, if any, cannot be said to have prejudiced the cause of the petitioner in any manner. He also contended that the petitioner was supplied under the orders of the General Manager the copies of the statements of the witnesses that were recorded by the enquiry officers before the chargesheet was issued and therefore at this stage it is not open to the petitioner to register a grievance that he was not afforded a reasonable and adequate opportunity to meet the charge. It was also contended by Sri Bhargava that it is wrong to say that five officers, as mentioned in the writ petition, had conducted a preliminary enquiry. According to him it were only two persons, namely, the C.T.I. (Special), Ajmer, Sri Kanhaiyalal and A.T.S. (T.T.), had conducted preliminary enquiries and the copies of the statements of the persons that were examined by these two officers were made available to the petitioner. He, however, admitted that the reports of these two officers were not allowed to be inspected by the petitioner, nor the copies thereof were supplied to him because the petitioner was not entitled to inspect those reports as they were not relevant for the purpose of this enquiry, nor has the department relied on these documents in the proceedings taken against the petitioner. In his arguments Sri Bhargava referred to the statements of various witnesses examined by the enquiry officer and tried to show that the circumstances that have been established in this case lead to no inference but the one that the delinquent officer, namely, the petitioner had undercharged the members of the marriage party. In these circumstances, it was urged by him that it cannot be said with any Justification that the General Manager has taken the second charge proved against the petitioner without any evidence on the record. As regards the fourth objection, the learned counsel pointed out document (Ex. 12) produced by the petitioner himself to show that he did not file any appeal before an appellate authority but he simply moved the higher authority, namely, the Deputy Chief Commercial Superintendent, Western Railway, by way of submitting a mercy petition to him. Sri Bhargava in this connexion further contended that even if there was an appeal of the petitioner pending before the appellate authority, the General Manager who is definitely a higher authority in the hierarchy of the railway administration is not precluded from taking action under Rule 1736 which he could have taken even after the appellate authority had exonerated the petitioner of the charges. In this view of the matter, It was prayed by learned counsel for the respondents that the objections raised by the petitioner have no merits in them and they should, therefore, be dismissed.

6. I propose to take the four grounds of attack separately one by one.

7. Regarding 1.-It will be convenient to reproduce the chargesheet to consider the first ground of attack of Sri Lodha. The chargesheet (Ex. 1) reads as follows:

Western Railway

Chargesheet for penalties specified in clauses (iv) to (vii) of Sub-rule (1) of Rule 1707 R.I.

(Appendix B of the Western Railway)

Headquarters Office,

Churchgate, Bombay,

Dated 26 March 1962

No. E. 308/2/1480

To

Lekhram Laxmanram

T.T.E. Special Gang

(Through C.C., Rates.)

1. You are hereby charged with the offence(s) noted on the reverse.

2. You are directed to show cause in writing why you should not be removed or punished with any of the lesser penalties specified in Rule 1707 of the State Railway Establishment Code, Vol. I, by the competent authority.

3. Your defence is required to be submitted to my office (through your immediate superior) not later than the end of seven days from the date of receipt of this charge-sheet by you.

4. You may ask to be heard in person. You may also ask for another employee of this railway or a trade union official (who is not a professional lawyer) of the union recognized by this railway to accompany you at the hearing. Your wishes in this connexion should be clearly stated while submitting your defence.

5. Your defence may be given on a separate sheet of paper quoting the number and date of this chargesheet. If you are unable to record your defence in English, your explanation may be submitted in the regional Indian language with which you are most familiar.

6. If you do not submit your defence within the specified time, the case will be dealt with on the basis of the information available.

7. You are required to acknowledge receipt of this chargesheet on the form subjoined.

(Sd.) -,

(Signature.)

Designation for S.C.O. (G.).

Enclosure : Statement of allegations is on the reverse.

8. Sri Lodha has vehemently urged that in Para. 2 of the chargesheet the S.C.O.G. preferred to delete certain penalties which were typed out in the first instance. Those penalties are:

(1) dismissal,

(2) compulsory retirement,

(3) reduction to lower post or to a lower stage in time-scale.

9. The striking of these penalties according to him, shows that the authority that had issued this chargesheet had prejudged the conduct of the petitioner before the enquiry was actually launched. This prejudging of a man, according to Sri Lodha, vitiated the entire enquiry as the person, who had been prejudged by a competent authority empowered to impose penalty on the petitioner loses all enthusiasm in fighting his case before the enquiry officer which may result in gross injustice to him. He also urged that the framing of a charge in such a manner shows that the conduct of the delinquent officer was prejudged by the disciplinary authority and such a chargesheet, therefore, was not in consonance with the provisions of Article 311 of the Constitution which provides certain safe grounds to the Government servant, Sri Lodha's contention is that in accordance with the provisions of Article 311(2) of the Constitution the disciplinary authority cannot form any opinion about the punishment to be inflicted to the delinquent officer before the conclusion of the enquiry and, therefore, the chargesheet on the basis of which the enquiry into the alleged charges is initiated should not mention the proposed punishment. According to Sri Lodha such a mention of punishment in the first notice is a clear violation of the guarantee embodied in Article 311(2) of the Constitution. In support of this contention reliance has been placed on S. Manickam v. Superintendent of Police, Nilgiris, and Ors. 1963-II L.L.J. 62 and certain observations of the Supreme Court in Khem Chand v. Union of India and Ors. 1969-I L.L.J. 167.

10. Sri Bhargava, on the other hand, pointed out that the Discipline and Appeal Rules prescribe a form for the issue of a chargesheet in which all these penalties, which the authority can impose on a delinquent officer, have been mentioned. His argument is that the chargesheet Ex. 1 was issued by the S.C.O.G. on the said prescribed form and if by mistake certain penalties printed in that form were not struck off before issuing the chargesheet it cannot be said that the S.C.O.G. had prejudged the conduct of the petitioner. As for striking out only certain penalties in Para. 2 of the chargesheet, his contention in the alternative was that by striking these penalties the issuing authority simply wanted to indicate to the petitioner that the procedure that the enquiry officer may adopt at the enquiry shall be in accordance with the procedure prescribed by Rule 1712 of the Discipline and Appeal Rules which relates to the infliction of the major penalties. Sri Bhargava further urged that in this particular case as the petitioner could be punished by imposing major penalties the issuing authority did not strike off the penalty of removal in the chargesheet as that would have been the maximum penalty that could be imposed on the petitioner in the circumstances of the case. It was also urged that in spite of this chargesheet, the S.C.O.G. ultimately thought it desirable to punish the petitioner by imposing a penalty of stopping his two increments and, therefore, in these circumstances it is difficult to say that the S.C.O.G. had prejudged the conduct of the petitioner and the proposed penalty for the alleged charges before making any inquiry into them.

11. Article 311 of the Constitution affords a constitutional guarantee to a public servant that he shall not be dismissed or removed or demoted by an authority subordinate to that by which he was appointed and that he shall not be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. In S. Manickam v. Superintendent of Police, Nilgiris, and Ors. 1963-II L.L.J. 62 (vide supra), which is a very short judgment, the learned Judge quashed the order of dismissal of the petitioner in that case on the basis that a charge that was given to the delinquent officer was defective. In that case the chargesheet contained, after setting out the allegations against the delinquent officer, the following:. show cause why you should not be dismissed from the force or otherwise punished for the above gross indisciplinary conduct.

12. His lordship observed that this method of framing a charge was not in consonance with Article 311 of the Constitution because, according to him, at this stage of the charge no question of punishment can arise. The fact that the proposed punishment was mentioned in the charge itself, in the opinion of the learned Judge, established that even before the charge was enquired into, a finding had been arrived at on the basis of which the petitioner had been prejudged.

13. There is no doubt that it is now a well settled practice that in matters where major punishment can be awarded to a public servant the disciplinary authority before starting an enquiry furnishes a chargesheet to the delinquent officer and affords him an opportunity to explain his conduct and if his explanation is not found satisfactory then enquiry is held under the rules framed under Article 309 of the Constitution. If as a result of such an enquiry the officer is found guilty of the charge then the punishing authority under Article 311 of the Constitution serves him with a notice to show cause why the proposed punishment may not be awarded to him. At this stage the officer has a second opportunity to prove himself innocent. It is after considering the second explanation of the delinquent officer that the punishing authority finally imposes the penalty. The scope of Article 311 of the Constitution has been considered by the Courts in India in many cases and it is only this that a public servant should get two opportunities to explain his conduct before he is awarded major penalties, one at the time when he is served with a chargesheet and the second when he is required to show cause why penalty which is proposed as a result of the enquiry may not be imposed on him. Article 311, in my opinion, does not deal with the form of the chargesheet which in such enquiries is given to the officer before actually launching the enquiry.

14. It cannot be denied that in the present case the chargesheet did contain the proposed penalties, but it does not necessarily mean that the S.C.O.G. who had issued that chargesheet had prejudged the conduct of the petitioner. This fact that the S.C.O.G. after enquiry awarded a minor penalty to the petitioner of stopping two increments itself negatives this argument of Sri Lodha that his client's matter was prejudged by the punishing authority. It is not the grievance of the petitioner that a second notice about the proposed penalty was not served on him. In such circumstances, the argument of Sri Bhargava that the chargesheet was given on a prescribed form that mentions all the penalties prescribed under the rules and they were not properly struck off before it was served on the petitioner appears to be quite sound. It may also be mentioned here that Sri Lodha could not point out before the Court as to how his client was prejudiced by this chargesheet which mentioned certain penalties which tinder the rules could be imposed on the petitioner if he were found guilty of the charges mentioned therein. The General Manager while exercising his power of review after a second enquiry served the petitioner with a second notice to show cause why the proposed penalty of removal may not be imposed on him and the petitioner availed this opportunity to explain his conduct. In these circumstances, it is difficult to hold that the cause of the petitioner was in any manner prejudiced by the chargesheet Ex. 1.

15. In S. Manickam v. Superintendent of Police, Nilgiris, and Ors. 1963-II L.L.J. 62 (vide supra), the chargesheet contained the proposed penalty and the officer was asked to show cause why he should not be dismissed. In the opinion of the learned Judge this defect was of such a nature that vitiated the enquiry as, according to him, the mentioning of the penalties in the chargesheet necessarily leads to an inference that it was a case of prejudging the conduct of the petitioner. With all respect, I regret. I cannot agree with the finding recorded by the learned Judge. The judgment is so short that it is difficult for me to know whether In that case second notice was issued to the petitioner or not. Secondly, the learned Judge was of opinion that the chargesheet was not in consonance with the provisions of Article 311. I have already mentioned the scope of Article 311 in this judgment. If the second opportunity was afforded to the delinquent officer to establish his innocence under the requirements of Article 311 of the Constitution, then the defect of mentioning the penalties in the chargesheet becomes meaningless and in such circumstances it is difficult to say that the case of the officer was prejudged by the disciplinary authority.

16. Sri Chandmal read out with great emphasis the following observations of the Supreme Court in Khem Chand case 1959-I L.L.J. 167 (vide supra) which appear at p. 177:. This procedure also has the merit of giving some assurance to the officer concerned that the competent authority maintains an open mind with regard to him. If the competent authority were to determine, before the charges were proved, that a particular punishment would be meted out to the Government servant concerned, the latter may well feel that the competent authority had formed an opinion against him, generally on the subject-matter of the charge or, at any rate, as regards the punishment itself. Considered from this aspect also the construction adopted by us appears to be consonant with the fundamental principle of jurisprudence that justice must not only be done but must also be seen to have been done.

17. These observations of their lordships of the Supreme Court, if read detached from the facts and circumstances of that case, then they undoubtedly go to support the contention of Sri Lodha but when they are read in the context of the circumstances in which their lordships have made the said observations, then I am inclined to hold that they have no application on the facts and circumstances of the present case. In that particular case, eight charges were framed against Khem Chand who was at the relevant time sub-inspector in the rehabilitation department of the co-operative societies and in that charge he was also called upon to show cause why he should not be dismissed from the service. One Sri J.B. Tandon, who conducted the enquiry of the charges contained in the above chargesheet, submitted his report on 13 December 1951, and after reciting the chargesheet containing the notice calling upon the delinquent officer to show cause why he should not be dismissed from service and setting out the charges contained in the notice and summarizing the explanations submitted by the officer with regard to these charges, recommended, that certain charges of embezzlement, acceptance of illegal gratification and borrowing of money from society were established and according to Sri Tandon the charges were so serious that even one of them alone was sufficient to demand the appellant's dismissal. With this recommendation, he submitted his report to the Deputy Commissioner, Delhi, who at that time was the ex officio Registrar of Co-operative Societies. The Deputy Commissioner, on receipt of the said report, made the following endorsement on 14 December 1951:

The report is approved. Action accordingly.

18. And thereupon a formal order was issued under the signatures of the Deputy Commissioner, Delhi, in the following terms:

I, the undersigned, do hereby dismiss Khem Chand, sub-inspector, co-operative societies, Delhi, from the Government service with effect from the date of this order. He has been found guilty of the charges of embezzlement, acceptance of illegal gratification, making wrong statement, misbehaviour at the time of the enquiry and refusal to receive order to attend the enquiry. I further order that money which has been proved to have been taken by Khem Chand from various societies be recovered from the security deposit furnished by him.

19. This order of dismissal and realization of the money was challenged in a suit by Khem Chand. The matter went up to the Supreme Court, and an argument was raised on behalf of Khem Chand that under Sub-section (3) of Section 240 of the Government of India Act, 1935, and also under Article 311 of the Constitution the public servant was entitled to get an opportunity to show cause against the proposed penalties which the punishing authority provisionally suggests after looking into the allegations against the delinquent officer after they have been established through the process of enquiry, and since in that particular case the second notice was not issued to Khem Chand after the enquiry was over proposing the penalty of dismissal, it was urged before their lordships of the Supreme Court that that second opportunity was totally denied to Khem Chand which vitiated the order of dismissal. Learned counsel for the parties in support of their respective contentions, relied upon the observations of the Privy Council in High Commissioner for India V.I.M. Lall A.I.R. 1948 P.C. 121 and also the majority judgment in the same case given by the Federal Court as Secretary of State v. I.M. Lall A.I.R. 1945 F.C. 47. While dealing with that aspect of the question, their lordships of the Supreme Court observed:

If the opportunity to show cause is to be a reasonable one, it is clear that he should be informed about that charge or charges levelled against him and the evidence by which it is sought to be established, for it is only then that he will be able to put forward his defence. If the purpose of the provision is to give the Government servant an opportunity to exonerate himself from the charge and if this opportunity is to be a reasonable one, he should be allowed to show that the evidence against him is not worthy of credence or consideration and that he can only do if he is given a chance to cross-examine the witnesses called against him and to examine himself or any other witness in support of his defence. All this appears to us to be implicit in the language used in the clause, but this does not exhaust his rights. In addition to showing that he has not been guilty of any misconduct so as to merit any punishment, it is reasonable that he should also have an opportunity to contend that the charges proved against him do not necessarily require the particular punishment proposed to be meted out to him. He may say, for instance, that although he has been guilty of some misconduct it is not of such a character as to merit the extreme punishment of dismissal or even of removal or reduction in rank and that any of the lesser punishments ought to be sufficient in his case.

20. Their lordships, while dealing with the question of the reasonable opportunity in this connexion, further observed;

But as we have already explained, the other observations of their lordships of the Judicial Committee, which follow immediately, quite clearly indicate that what they agreed with was that a second opportunity was to be given to the Government servant concerned after the charges had been brought home to him as a result of the enquiry. Their lordships made it clear that no action could, in their view, be said to be proposed within the meaning of the section (Section 43 of the Government of India Act, 1935) until a definite conclusion had been come to on the charges and the actual punishment to follow was provisionally determined on, for before that stage the charges remained unproved and the suggested punishments were merely hypothetical and that it was on that stage being reached that the statute gave the civil servant the opportunity for which Sub-section (3) made provision.

21. It is in this context that the observations relied upon by Sri Lodha were made by their lordships because in that case an argument was advanced, that no second notice of the proposed punishment was given to Khem Chand after the enquiry was over. The contention of the Solicitor-General, however, was that Khem Chand had an opportunity to show cause against the punishment because the notice, dated 9 July 1949, containing the charges also proposed the punishment to be inflicted on him and he was called upon to show cause against the charges as well as against the punishment of dismissal. Learned Solicitor-General tried to distinguish the observations of the Privy Council in I.M. Lall case A.I.R. 1948 P.O. 121 (vide supra) by pointing out that the notice which was given to I.M. Lall did not specify dismissal as the only punishment proposed to be imposed on him but called upon him to show cause why he should not be dismissed, removed or reduced or subjected to such other disciplinary action as the competent authority might think fit to enforce. It was in reply to this argument of the Solicitor-General that their lordships observed that the reasonable opportunity must be given to the officer concerned after the proposed penalties which are going to be imposed on him, are intimated to him on the basis of the enquiry report which warrant the proposed penalties to be imposed on the delinquent officer, and in this connexion their lordships thought of a procedure which in such enquiries must be followed and it was for that procedure that the said observations were made by them. Those observations cannot, in any manner, be attracted to the facts and circumstances of this case because in this case it is clear that after the enquiry was over, the petitioner was served with a second notice proposing the punishment of removal and that punishment undoubtedly was not the same which was mentioned in the chargesheet issued to the petitioner on 26 March 1962. In these circumstances, it cannot be said with any justification that the petitioner was, in any manner, prejudiced by the chargesheet which has been termed by Sri Lodha as a defective one. Nor can it be said with any justification that by mentioning the penalty in the chargesheet the petitioner's case was prejudged by the disciplinary authority. I do not find any force in the first objection raised by Sri Lodha and it is, therefore, rejected.

22. Regarding 2, that no adequate and reasonable opportunity was afforded to the petitioner to meet the charge.-The main ground advanced by learned counsel for the petitioner is that after the receipt of chargesheet Ex. 1, the petitioner applied to get the copies of the findings of the preliminary enquiry conducted by five officers mentioned in Ex. 2 in order to enable him to submit his defence. The S.C.O.G by his letter No. E-308/2/1480, dated 10 May 1962, informed the petitioner that there is no mention in the chargesheet about the reports of the enquiry officers who conducted the preliminary enquiries and since the charges were not framed on the basis of those reports, the copies of those reports cannot be supplied to the petitioner under the rules. Thereupon, by another letter, dated 26 May 1962 (Ex. 4), the petitioner demanded under Rule 1711, Discipline and Appeal Rules, the inspection of the official records to prepare his defence but it appears that he did not receive any reply, nor was he permitted to have an inspection of the files containing the reports of the railway officers who conducted the preliminary enquiry. It may be stated here that the respondents in their reply have admitted that only two enquiries as mentioned at items 1 and 2 in Ex. 2 were held by the department. It was denied that five preliminary enquiries were made in this matter.

23. Learned counsel appearing on behalf of the respondents submits that the General Manager when he disagreed with the punishment awarded to the petitioner by the S.C.O.G. and proposed a fresh enquiry and a show-cause notice was given to the petitioner why he should not be removed from the service, he made it clear that the statements recorded by the two enquiry officers, who conducted the preliminary enquiries in this connexion, may be made available to the petitioner. The names of those witnesses have also been mentioned in the document Ex. 13 produced by the petitioner himself. Thereafter, it is not the grievance of the petitioner that the statements of those witnesses, who were examined at the preliminary enquiries, were not made available to the petitioner to prepare his defence. It is admitted by the petitioner in his letter addressed to the enquiry officer that he had perused the statements of those witnesses who were examined by the enquiry officers at the preliminary enquiries but his grievance is that he was never served with the copies of the reports made by the two enquiry officers who conducted the preliminary enquiry and this action of the respondents has prejudiced his cause because he was not afforded a reasonable opportunity to prepare his defence.

24. After perusing the documents that have been brought on the record and referred to by learned counsel for the parties, the only point that now remains to be determined under this head is whether the petitioner has been denied a reasonable opportunity at the enquiry because the two reports made by the officers who conducted the preliminary enquiry before the chargesheet was issued to him were not made available to him.

25. Sri Bhargava urged that those two enquiry reports simply contained the opinion of the enquiry officers and therefore those reports cannot be admitted in evidence either for or against the petitioner and if, in these circumstances, the copies of those reports were not made available to the petitioner, it cannot be said that a reasonable opportunity was denied to him to prepare his defence. In this connexion, he relied on a Patna case in Dr. Tribhuwan Nath v.State of Bihar : AIR1960Pat116 and also referred to Dr. Ishwar Narain Sinha v. Union of India : AIR1957All439 .

26. A preliminary enquiry is usually held to determine whether a prima facie case for a formal departmental enquiry is likely to be made against the delinquent officer. A report, which is made by an enquiry officer conducting a preliminary enquiry on the basis of the evidence collected by him is simply his opinion about a fact whether a departmental enquiry, in the circumstances, which have been brought before him, is necessary or not. It is only after the disciplinary authority decides that prima facie case has been made out, that a formal charge is issued to the delinquent officer and thereafter a regular enquiry is set up. During the course of the regular enquiry, the officer can demand the evidence which prompted the disciplinary authority to take action against the delinquent officer but the opinion of an officer, who had conducted the preliminary enquiry, cannot be taken into consideration as an evidence either for or against the person who is facing the charge in a regular enquiry. That is simply an opinion of an officer who had collected certain facts in order to find out whether a prima fade case was or was not made out against a person against whom the enquiry is sought to be made. It is only worthy of note that the disciplinary authority at no stage of the departmental enquiry referred the reports of the officers who held the preliminary enquiries before issuing the charge-sheet. In these circumstances, if those reports were not made available to the petitioner at the stage of the regular departmental enquiry, it is difficult to say that he was denied a reasonable opportunity to meet the charges. In Dr. Tribhuwan Nath v. State of Bihar A.I.R. 1960 Pat. 110 (vide supra), the learned Judges observed:

A reasonable opportunity which a Government servant is to be given to satisfy the constitutional requirements of Article 311(2) envisages only this, that he should be informed of the charge or charges levelled against him and the evidence by which they are sought to be established. Once it has been done and ample opportunity has been afforded to him to meet the evidence and enter on his defence, there is no denial of reasonable opportunity and there is no legitimate ground for complaint.

27. In that case, the copy of the report of the Anti-Corruption Department was sought by the delinquent officer but it was not supplied to him. Considering the question of the non-supply of the report of the Anti-Corruption Department, their lordships further added:

If the report of the Anti-Corruption Department had been considered by the Commissioner and relied upon at any stage of the enquiry, then surely he was entitled in law to have an opportunity of examining it and meeting the allegations contained therein. When, however, this report was not at all exhibited in the case nor was it referred to nor relied upon by the Commissioner, there was no meaning in contesting it and consequently absence of opportunity to meet its contents involved no violation of constitutional provisions.

28. In the instant case also, the reports made by the two officers who conducted the preliminary enquiry were neither relied upon by the disciplinary authority nor were they exhibited and, therefore, the denial to the petitioner of the copies of those reports cannot be said to be a denial of reasonable opportunity.

29. Sri Lodha under this head also urged that one K.G. Chauhan who was C.T.I. of the Northern Railway and who conducted the raid on 32 Down Janta Express at the Delhi Junction for checking the marriage party was not presented for examination before the enquiry officer even though a request was made by the petitioner by his letter dated 21 July 1965 which is Ex. 15 on the file.Sri Bhargava pointed out certain documents to show that an effort was made by the Western Railway authorities to see that Sri Chauhan may be brought before the enquiry officer, but as he had already retired from the Northern Railway service it became impossible for them to have brought him before the enquiry officer, and it was in these circumstances that Sri Chauhan could not be examined by the second enquiry officer. From the perusal of the rules, I find that enquiry officers could not take coercive methods to procure the attendance of a witness who in spite of the efforts of the railway does not appear before them. Learned counsel for the parties could not point out any such provisions whereunder Chauhan could be brought before the enquiry officer against his wishes. Chauhan, as pointed out by Sri Bhargava, had already retired and, therefore, it was only through persuasive methods that he could be brought for examination before the enquiry officer and when these methods did not bring about any fruit, then it cannot be said that the non-production of a witness who in spite of the efforts by the Western Railway is a denial of a reasonable opportunity to the petitioner. I also find in the report Ex. 16 turned out by the second enquiry officer that no reliance has been placed on the statement of K.G. Chauhan to fix the responsibilities either of neglect of duty or of deliberately undercharging the marriage party. In such circumstances, this argument of Sri Lodha also loses its force.

30. Regarding (3).-Sri Lodha has urged that it is a case of holding the petitioner guilty for the charges mentioned in the chargesheet without any evidence on the record and, therefore, this Court in its extraordinary jurisdiction can interfere with the findings recorded by the General Manager about holding the petitioner guilty for neglect of duty and for deliberately undercharging the marriage party. While arguing this point, learned counsel for the parties have taken me through the statements of the witnesses who were examined at the enquiry. From the perusal of these statements, it is admitted by both the parties that the following circumstances have been established by the railway:

(1) That at the relevant time the petitioner was a member of a special squad of the travelling ticket examiners posted at Abu Road and that he could have unscheduled checking of any train.

(2) That Murarilal, who took the marriage party of his son by the 32 Down Janta Express, was a sweet-vendor at Abu Road railway station.

(3) That the petitioner boarded the Janta Express for checking on 11 December 1960 from Abu Road.

(4) That the petitioner detected two persons at Sirohi Road belonging to the said marriage party and prepared two excess fare tickets charging Rs. 44.50 from Abu Road to Delhi on a certificate issued by the guard to the effect that, while boarding the train those two persons had informed him that they could not purchase the tickets.

(5) That the petitioner deposited the collections made by him at the Ajmer railway station and he was intending to leave that train at Ajmer but on hearing from persons who were to join that marriage party from Ajmer that they could not purchase tickets, the petitioner decided once again to catch that train for the purpose of checking and he found between Kishangarh and Phulera ten members of the marriage party travelling without tickets and charged Rs. 109.75 from them.

(6) That on further checking of that train beyond Phulera. the petitioner noticed one more child belonging to the marriage party travelling without ticket and therefore he charged Rs. 5 from the parents of the child.

(7) That at Delhi Junction the Northern Railway staff checked the train and detected 25 passengers belonging to Murarilal's marriage party travelling without tickets. They were charged Rs. 698.70.

(8) That about ten persons belonging to the Western Railway service were the members of the marriage party.

(9) That the train was overcrowded and the marriage party was scattered in different compartments.

(10) That K.P. Bhattacharya, scheduled travelling ticket examiner, was on duty and travelling in that train beyond Ajmer but be did not collect a single pie as excess fare from any of the passengers of that train.

31. On the basis of these established circumstances, the General Manager, Western Railway, came to the conclusion that the petitioner was guilty of both the charges, i.e., the neglect of duty as well as of deliberately undercharging the marriage party. The conclusions drawn by the enquiry officers were however different. Both the enquiry officers were of the view that from the above circumstances the charge about the neglect of duty was established against the petitioner, but in the absence of any direct evidence they found it difficult to hold the petitioner guilty for positive act of deliberately undercharging the marriage party of Murarilal's son especially when there was evidence to show that the petitioner had charged thirteen members of the marriage party.

32. Learned counsel for the petitioner strenuously argued that the principles of criminal jurisprudence which govern criminal trials should not be lost sight of in the departmental enquiries which are of quasi-criminal nature. He urged that if the circumstances which have been established are capable of being explained on hypothesis which is consistent with the innocence of the petitioner, then, the petitioner cannot be punished unless the circumstances were such which could lead to no other inference except the inference of guilt of the petitioner. In this connexion, reliance has been placed by Sri Lodha on Union of India v. H.C. Goel 1964-I L.L.J. 38 ;Golam Mohiuddin v. State of West Bengal and Ors. 1964-I L.L.J. 462 and Shyamnarain Sharma v. Union of India and Ors. .

33. Sri Bhargava, on the other hand, urged that if after considering the evidence on the record, the enquiry officer or the punishing authority could reasonably arrive at a conclusion recorded by him, then this Court, which is not a Court of appeal, should not interfere with the finding of the punishing authority and should not substitute its own judgment in place of the judgment of the authority empowered under the rules to punish the delinquent officer. In support of this contention reference has been made to a Supreme Court authority in State of Andhra Pradesh and Ors. v. S. Sree Rama Rao A.I.R. 1963 B.C. 1723, and emphasis has been laid down on the following observations of their lordships:

Where there is some evidence, which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court in a petition for a writ under Article 226 to review the evidence and to arrive at an independent finding on the evidence. The High Court may undoubtedly interfere where the departmental authorities have held the proceedings against the delinquent in a manner inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the authorities have disabled themselves from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or by allowing themselves to be influenced by irrelevant considerations or where the conclusion on the very fact of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion, or on similar grounds. But the departmental authorities are, if the enquiry is otherwise properly held, the sole judges of facts and if there be some legal evidence on which their findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a proceeding for a writ under Article 226 of the Constitution.

34. As far as the principles laid down by their lordships of the Supreme Court in this authority are concerned, Sri Lodha has no quarrel but his contention is that in the present case there is no evidence at all to show that the petitioner had deliberately undercharged the members of the marriage party, nor, according to him, can it be inferred from the circumstances established by the department that the petitioner was guilty of negligence in discharging his duties of checking the train in which the marriage party was travelling.

35. It is conceded by Sri Bhargava that there is no direct evidence on the record to show that the petitioner had undercharged the members of the marriage party but his contention is that all the circumstances that have been established by the department lead to no inference except the one that the petitioner was deliberately shielding the marriage party and did not permit the other travelling ticket examiners to check them and he also did not check the entire marriage party because the marriage party also consisted of few railway servants. In this connexion, he has referred to the statement of Bhattacharya who in reply to question 5 stated:

I met them at Phulera, and cannot say where they entrained. At Phulera I saw Lekhram dealing with a party. I asked him if he had detected some case and he replied that he was dealing with a marriage party and was scrutinizing the number of the party and would advise the excess fare ticket issued later on.

Except this statement there is nothing in his statement to show that the petitioner had shown any interest in shielding the marriage party. There is no doubt that the petitioner had come to know between Abu Road and Sirohi Road that a marriage party of Murarilal's son was travelling in that train and that two of its members had boarded the train at Abu Road without purchasing the tickets and they were charged by him at Sirohi Road on a certificate issued by the guard but this fact could not afford a clue to the petitioner to suspect that the entire marriage party was travelling without ticket because these two persons had informed the guard before taking the train that they could not purchase the tickets and it is why a certificate was issued by the guard. If the certificate of the guard had not been there, then it could give rise to a suspicion that the other members of the marriage party might also be going without ticket. This circumstance, therefore, that he charged two members at the Sirohi Road is not sufficient to hold that the petitioner knew that the marriage party was travelling without ticket. At Ajmer, it is said that the petitioner overheard some people saying that they could not purchase the tickets while they were trying to board the train from there and therefore though he was thinking to discontinue his journey at Ajmer he again took that train and charged ten persons between Kishangarh and Phulera. There is no evidence on the record to show that by charging these ten persons he could have sensed that the other members of the marriage party might also be travelling in that manner, especially when there is nothing to show that those ten persons were travelling from Abu Road and had not entrained from Ajmer as is alleged by the petitioner. Thereafter, the petitioner charged one child between Phulera and Reengus. If the petitioner had been shielding the marriage party, as has been inferred against him, then he would not have charged the members of the party, in piecemeal in the manner in which he did it. Thereafter, the petitioner, according to his statement, slept and went up to Delhi but at the time when the Northern Railway staff raided the train after its arrival at the Delhi Junction, he says, he was fast asleep and he did not know that the other members of the marriage party were checked by the Northern Railway staff.

36. Sri Lodha contends that the circumstances that have been established by the railway authorities, on the contrary, lead to an inference that the petitioner was not prepared to leave anybody to go without ticket whosoever came in his contact during the checking. He also urged that in no circumstances the guilt of the petitioner can be said to have been established on the basis of the circumstances referred to above. His. argument is that in order to punish an officer under the Discipline and Appeal Rules (D.A.R.) it must be established beyond all shadow of doubt that the officer was guilty of the charges levelled against him and if there is any room for doubt, then the benefit of that doubt must go to the officer. In this connexion, he placed reliance on a Supreme Court authority in Union of India v. H.C. Gael 1964-I L.L.J. 38 (vide supra). In that case one H.C. Goel was charged for having attempted to bribe his immediate boss Sri R. Rajagopalan for getting his seniority fixed in the cadre of service of the Central Public Works Department and in that connexion it was alleged that he first told Rajagopalan that he forgot to bring ' rasagullas ' for the children of Rajagopalan, and when Rajagopalan frowned at him and expressed his displeasure at this conduct of Goel then he took out from his pocket a wallet and got out of it a paper which appeared to Sri Rajagopalan a folded hundred-rupee note. Sri Rajagopalan thought that Goel wanted to offer that hundred-rupee note to him as a bribe. Rajagopalan reported this fact to his superior officer and a departmental enquiry started against Goel. Sri Rajagopalan's statement was recorded in that enquiry who was the salutory witness to prove the said allegations against Goel. The disciplinary authority accepted Rajagopalan's version and as a result of the departmental action Goel was dismissed. The order of dismissal was then challenged by Goel in the Punjab High Court. The High Court set aside the order of dismissal and it was against that order of the High Court that the Union of India went to the Supreme Court in appeal. The matter was vehemently argued by the Attorney-General, and the Union of India made it a test case to see that such officers who tried to corrupt their superior officers should be punished. The only evidence that was believed against Goel was that of Rajagopalan who deposed that Goel had taken out his wallet from his pocket and from that wallet he pulled out a double-folded hundred-rupee note, which according to Sri Rajagopalan, Goel wanted to give him as bribe. Sri Rajagopalan further deposed that he showed his stern disapproval at the conduct of Goel whereupon the note was kept back by Goel in his pocket. Rajagopalan, however did not state that Goel had actually offered him the note as a bribe but from Goel's conduct he thought that that paper which appeared to him like a double-folded hundred-rupee note was taken out by Goel, to give him as bribe. The Supreme Court, while believing the statement of Sri Rajagopalan, for whom it was observed that he was a straightforward and honest officer, did not agree with the argument of the learned Attorney-General who expressed his deep anxiety to root out the corruption from the public services that the finding recorded by the enquiry officer on the basis of the evidence of Sri Rajagopalan should not have been interfered with by the High Court. Their lordships in this connexion observed at p. 46:. Though we fully appreciate the anxiety of the appellant to root out corruption from public service, we cannot ignore the fact, that in carrying out the said purpose, mere suspicion should not be allowed to take the place of proof even in. domestic enquiries. It may be that the technical rules which govern criminal trials in Courts may not necessarily apply to disciplinary proceedings, but nevertheless, the principle that in punishing the guilty scrupulous care must be taken to see that the innocent are not punished, applies as much to regular criminal trials as to disciplinary enquiries held under the statutory rules. We have very carefully considered the evidence led in the present enquiry and borne in mind the plea made by the learned Attorney-General, but we are unable to hold that on the record, there is any evidence which can sustain the finding of the appellant that charge 3 has been proved against the respondent....

37. Charge 3 in that case referred to offering a currency note which from size and colour appeared to be a hundred-rupee note as bribe with the intention of pursuading Deputy Director, Sri Rajagopalan, to support his representation regarding his seniority to the Union Public Service Commission.

38. Another case relied upon by Sri Lodha is Gulam Mohiuddin case 1964-I L.L.J. 462 (vide supra). In that case one of the charges against the petitioner was that a sum of Rs. 800 from one Abdul Hamid Mir of village Podra was received by the petitioner on a pretext that he would recommend the case of Abdul Hamid to Sri S. Mullick, I.C.S., District Magistrate before whom the case of Mir was pending. The department established certain facts with regard to that charge and they were

(1) that a case against Mir was pending before Sri Mullick, District Magistrate,

(2) that a cheque of Rs. 500 was drawn by Abdul Hamid and that it was encashed at the counter of the bank on the strength of the identity of Abdul Hamid by the petitioner,

(3) that the cheque was written by the petitioner.

The learned Judge, while considering these circumstances with regard to that charge, held that the pendency of the criminal case at the time when a sum of Rs. 500 was said to have been paid to the petitioner and the association of the petitioner with Abdul Hamid in the matter of cashing the cheque are undoubtedly relevant circumstances but his lordship considered that these two circumstances are not such as are consistent with the acceptance of the money by the petitioner. It was further observed by the learned Judge that:

In order to find a person guilty on circumstantial evidence, the circumstance or the circumstances must be such as would irresistibly lead to an inference of the guilt of the persons charged with the offence. In the instant case, if the inference drawn from the circumstances be not the only irresistible inference, then there is an error of law committed which may merit rectification by a writ Court.

39. It may be mentioned that in the departmental enquiries the golden rule of criminal jurisprudence that if a man is to be held guilty on the basis of a circumstantial evidence alone, then the circumstances must be of such nature that they cannot lead to any other inference except the guilt of the officer charged cannot be given a go-by. If the circumstances established by the department in the departmental enquiry can be explained on a hypothesis which may be consistent with the innocence of the person charged, then, as laid down by the learned Judge in the Calcutta case, this Court in the exercise of its writ jurisdiction can rectify the error committed by the disciplinary authority.

40. The Supreme Court in Goel case 1964-I L.L.J. 38 (vide supra) has categorically laid down that in punishing the guilty person scrupulous care must be taken to see that the innocent are not punished and this rule which applies to the criminal trials is attracted to the disciplinary enquiries held under the statutory rules.

41. In the light of these decisions, I have now to see whether the facts that have been established by the department in the disciplinary enquiry are such which cannot give rise to an inference which may be compatible with the innocence of the delinquent officer. Taking all the circumstances established by the department in this enquiry into consideration either singly or cumulatively, it is difficult to say that these circumstances irresistibly lead to one conclusion only that the petitioner had deliberately undercharged the marriage party and thus he was guilty of charge 2. This fact stands fully established that the marriage party was scattered in different compartments and that the train was overcrowded. This circumstance does not altogether rule out this possibility that the petitioner in spite of his checking could not find out other members of the marriage party who were travelling without ticket by that train and seated in different overcrowded compartments. Other circumstances that the marriage party was that of the son of a licensed vendor at railway station, Abu Road, and that some of the members of the marriage party were the railway employees can give rise to suspicion about the petitioner's conduct in not charging all the members of the marriage party but mere suspicion, as the Supreme Court has held, cannot be allowed to take the place of proof in such domestic enquiries and, therefore, in the absence of a reliable proof it is difficult for this Court to uphold the finding of the General Manager that the petitioner was guilty of the charge of deliberately undercharging the marriage party.

42. As regards the charge relating to his negligence, it is evident that the petitioner had no intention to go in 32 Down Janta Express beyond Aimer but when he came to know that certain persons were joining the marriage party from Ajmer and had boarded the train without purchasing tickets he decided to check that train beyond Ajmer also and during that checking found out between Kishangarh and Phulera that ten persons of the marriage party were traveling without tickets. It is not the case of the petitioner that thereafter he took precautions to find out whether any other members of the marriage party were in the train or not. At Phulera he had a talk with Bhattacharya who was a scheduled travelling ticket examiner on that train and he told him that he was dealing with the marriage party but he did not instruct Bhattacharya to find out if any other member of the party were also travelling without ticket in other compartments not checked by him. This fact cannot be overlooked that certain railway servants were also members of that marriage party and one Roopchand who was in the special squad which was headed by the petitioner was also going by that train as a member of that party. The petitioner did not take any care which, under the circum-stances, was required from a member of the special squad to find out by checking the entire train whether other members of the party were also travelling in the same manner in which the ten persons whom the petitioner had charged were going. These circumstances inevitably lead to only one conclusion that the petitioner was not quite vigilant in the discharge of his duties as a member of the special squad and as such he could be held guilty of negligence. In these circumstances, the finding of the disciplinary authority about the charge of negligence does not call for any interference.

43. Regarding point 4.-Sri Lodha urged that the General Manager had no jurisdiction to exercise his power of review under Rule 1736 of the Discipline and Appeal Rules during the pendency of the appeal of the petitioner about the penalty which was imposed on him by the S.C.O.G. Sri Bhargava contends that the General Manager was the highest authority it the hierarchy of administration of the Western Railway and as such the appeal, even if it had been filed, could not have circumscribed the powers of the General Manager under Rule 1736 who even after the appeal was disposed of by the appellate authority was authorized to review the matter. He also urged that as a matter of fact no appeal was filed by the petitioner against the order of imposing a minor penalty of withholding his two increments. In this connexion, he drew my attention to document, Ex. 12, which was addressed to the Deputy Chief Commercial Superintendent, Church Gate, Bombay, by the petitioner. This document is dated 22 December 1964. It was mentioned in it by the petitioner that he did not want to approach him as an appellate authority nor as a protest against the order of the S.C.O.G., but he simply wanted to request him by making that representation to do justice to him. This letter cannot be taken to be a memorandum of appeal which the petitioner was entitled to file to the said authority after the minor penalty was imposed on him. Even if it is taken to be an appeal, I am inclined to agree with Sri Bhargava that appeal could not have circumscribed the power of the General Manager under Rule 1736. I am definitely of opinion that the General Manager could review the case of the petitioner under the said power even if an appeal was pending before the appellate authority.

44. It was urged by Sri Bhargava that if the charge of deliberately undercharging the marriage party is not proved against the petitioner, the General Manager was quite competent to have inflicted the penalty of removal for the charge of neglect of duty and, therefore, this Court should not interfere in the exercise of the extraordinary jurisdiction in the matter of punishment that has been inflicted on the petitioner. I regret I cannot accept this contention of Sri Bhargava. It is difficult to say that if the General Manager had arrived at the conclusion that the petitioner was guilty only of one charge, that is, the neglect of duty, what punishment he would have given to the petitioner. No doubt, the General Manager could have inflicted the same punishment to the petitioner for the charge of neglect of duty but the penalty that has been inflicted on the petitioner is for two charges, namely,

(1) neglect of duty, and

(2) deliberately undercharging the marriage party.

Charge (2) is undoubtedly a graver charge because by deliberately undercharging the marriage party the petitioner was acting in a corrupt manner but the first charge, that is, the neglect of duty is not as grave as the second one and, therefore, it cannot be said that for that charge the General Manager would have certainly punished the delinquent officer with the extreme penalty of removal that had been imposed in the present case.

45. For the reasons mentioned above, the orders of the General Manager dated 15 January 1966 (Ex. 19) removing the petitioner from the service and the order of the Railway Board dated 30 June 1966, confirming the said order of the General Manager, are hereby quashed. The General Manager will however be at liberty to take an appropriate action against the petitioner after giving him a notice under Article 311(2) of the Constitution for the charge of neglect of duty as upheld by this Court. The petition is accordingly allowed. I leave the parties to bear their own costs.


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