Skip to content


Bansidhar and 3 ors. Vs. the Union of India (Uoi) and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Writ Petition No. 1810/1981
Judge
Reported in1982WLN(UC)401
AppellantBansidhar and 3 ors.
RespondentThe Union of India (Uoi) and ors.
DispositionPetition allowed
Cases ReferredDr. Amarjit Singh Ahuwalia v. State of Punjab and Ors
Excerpt:
.....satisfaction--held, principles of natura i justice violated and reversion is involid.;only the report of the loco foreman has been considered and the report of the loco foreman is only the foundation on the basis of which the reversion orders have been issued.;satisfaction of the divisional manager, which has been alleged by him, does not stand that test of objective satisfaction and it seems that the order has been passed mechanically without objective satisfaction.;i am fully satisfied that the doctrine of 'audi alteram partem' has been violated and the reversion order (ex. 3) should be quashed.;writ allowed. - section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac.....d.l. mehta, j.1. these four writ petitions have been filed by the railway employees. learned counsel for both the parties agree that these writ petitions should be disposed of at the admission stage, as additional submissions are not necessary since common question of law has been raised in these writ petitions and argued, so these are being decided by one order, as prayed. it would be necessary first to mention the facts from one writ petition in order to appreciate the controversy. in sb civil writ petition no. 1809 of of 1981 (gokul chand v. the union of india and ors.), the petitioner was appointed originally as substitute fitter (vide ex. 1) dated feburary 28, 1976. thereafter, he was promoted as skilled fitter. the petitioner as well as the other persons, who have filed the writ.....
Judgment:

D.L. Mehta, J.

1. These four writ petitions have been filed by the Railway employees. Learned Counsel for both the parties agree that these writ petitions should be disposed of at the admission stage, as additional submissions are not necessary Since common question of law has been raised in these writ petitions and argued, so these are being decided by one order, as prayed. It would be necessary first to mention the facts from one writ petition in order to appreciate the controversy. In SB Civil Writ petition No. 1809 of of 1981 (Gokul Chand v. The Union of India and Ors.), the petitioner was appointed originally as Substitute Fitter (vide Ex. 1) dated Feburary 28, 1976. Thereafter, he was promoted as Skilled Fitter. The petitioner as well as the other persons, who have filed the writ petitions, were promoted to the post of High Skilled Fitter Grade II (vide Annexure R-l) dated April 1, 1982 In Annexure R-1, it has specifically been mentioned that the petitioner and others who have failed in the trade examination are promoted in the light of Circular Letter No. E(SCT) 74CM 15/34 (Ex. 2) issued by the Railway Board dated August 31, 974. This promotion was purely on ad-hoc basis for a period of six months. It was also specifically mentioned therein that after the completion of six months, report about the efficiency of the work shall be called upon and the case of the promotion shall be reviwed. The petitioner contends that in the light of Circular (Ex.), he cannot be reverted as the approval of General Manager has not been obtained, though this point has not been raised specifically in the writ petition. However, in a vague term it has been taken in the rejoinder without giving the grounds on which he claims that his case should have been reviewed by the General Manager. Learned Counsel for the petitioner has also submitted that the report (Ex. R.2) has been obtained by the respondents behind the back and no explanation has been called for and he has not been given an opportunity to rebut the report (Ex. R-2), submitted by the Loco Foreman to the Assistant Personnel Officer, Northern Railway, Jodhpur. This report is dated August 28, 1981, and order was passed on the basis of this report dated September 29, 1981, which has been marked as Ex. 3. This order has been issued from the office of the Divisional Manager, Northern Railway, Jodhpur. However, the contention of the learned Counsel for the petitioner at the stage of argument is that this Older has been signed by the Assistant Personnnel Officer, Northern Railway, and as such it cannot be said that this order has been passed by the Divisional Manager. Even if it is assumed that the order (Ex. 3) has been passed by the Divisional Manager even then, the Divisional Manager was not competent to pass this order as in the light of Circular (Ex. 2) the order should have been passed by the General Manager after being reviewed. Learned Counsel tor the petitioner has also submitted that the order (Ex. 3) has been passed behind his back and the principles of natural justice have been violated. His further submission is that the order (Ex. 3) is not a speaking order and the report (Ex. R-2) which has been submitted by the Loco Foreman, is not a detailed report, but it should be considered only as remarks and not the report and that too Ex- R-2 is in very vague terms and no material has been placed on record to show that the authorities conerned have applied their mind. Learned Counsel for the petitioner submits that order (Ex. 3) has been passed mechanically without the application of mind. He has also invited my attention to the order passed by this Court on July 20, 1982, by Hon'ble Miss Bhatnagar, J. The relevant portion of the order is reproduced as under:

Mr. Mathur is directed to place on record the proceedings after the expiry of the period of six months in confirmity with the circular.

Mr. A.K. Mathur, appearing on behalf of the respondents, has submitted that Circular (Ex. 2) has been followed by the authorities. His contention is that the petitioner has no where mentioned in his writ petition that which part of the circutar applies to him. His submission is that the petitioner should have mentioned in his writ petition that the General Manager was the competent authority to review the order. He further submits that inspite of the reply given by him that in the light of the circular, the Divisional Manager is not the competent authority to review the petitioner, petitioner has not said a word even in his rejoinder that the post on which the petitioner has been promoted, does not fall within the purview of seniority-cum-suit-ablity. His submission is that the post falls within the purview of seniority cum suitability and as such the Divisional Manager is the competent authority to review the orders and he further submits that the principles of natural justice have been followed and the question of not following the principles of natural justice does not arise at all. I have heard the rival contentions and deal with them accordingly.

2. The question involved before this, Court is whether the principles of natural justice audi alteram partem has been violated or not and if so, to what extent Special provisions have been made in the Constitution under Chapter III as well as Chapter IB to provide special concessions to the members of the Sc(sic) Castes and Scheduled Tribes, and to achieve the it seems that circular (Ex. 2) has been issued. In para 2 of the circular it has been specifically mentioned that 'thereafter, the object Scheduled Caste and Scheduled Tribe candidates who have been so earmarked may be promoted on ad-hoc basis fox a period of six months against the vacancies reserved for them. From the said six months the Administration should give them all facilities for improving their knowledge and coming up to the requisite standard, if necessary by organizing Special coaching classes. At the end of six months period, a special report should be obtained on the working of these candidates and the case put by the Department concerned to the General Manager thorugh SPO (RP) for a review.' In para 3 of the said circular only exception is made about the reviewing authority namely, that in case all the posts filled on the basis of Seniority-cum-suitabifity, the. reviewing authority shall be the authority competent to approve the select list.

3. Mr. Mathur submits that the authority competent is the Divisional Manager and he has invited my attention to Ex. 1 to substantiate this fact that the appointing authority is the Divisional Manager and he is the person who can approve the select list.

4. Learned Counsel for the petitioner has, referred the case of State of Punjab v. Jugal Kishor Gupta reported in 1971 (1) SLR at P. 784, their Lordships have held in para 3 of the judgment 'the learned Counsel for the respondents has drawn our attention to prithvl Raj Mehra v. The State of Punjab 1968 SLR 887. The decision has the seal of approval by the Supreme Court, because a special leave petition against this decision has failed. According to this decision, the Committee should have heard the respondents before coming to a conclusion whether they were fit or not to to be promoted. This is incumbent under the rules under which the Screening Committee has functioned. Rules, analogous to the rules which governed the present respondents, fell for determination in Prithvi Raj Mehra's case.' Learned Counsel for the petitioner has also invited my attention to the case of this Court in Mangilal and Ors. v. Union of India, and Ors. 1981 W L N, 622 the Hoa'ble Justice Lodha has held 'in this case the principle of 'audi alteram partem' is no longer restricted to judicial or quasi-judicial orders Only, A series of judgments of the Hon'ble Supreme Court have extended it to cover the appropriate cases of administrative authorities passing the order effecting rights and interests of another. An opportunity of hearing should be given to the petitioner irrespective of of an application of Article 311(2) of the Constitution. I am not holding that Article 311(2) is applicable in the present ease.' Their; Lordships further held in para 27 of the judgment 'the impugned orders staying the promotion of the petitioners as well as reverting them, decree to be quashed on the simple ground that after once they have promoted an individual who has joined and having drawn the salary, the principles of natural justice warranted that they should have been told of the representations against their promotions and allowed an opportunity of showing that these representations were untenable and unjustified. This having not been done, the principles of natural justice have been violated' Applying the principles laid down in the instant case, I will have to examine firstly the order (Ex. 3) which has been passed on the basis of Ex. R-2. In Ex. 3, it has been mentioned that the cases were reviewed on the basis of the report and after the persual of the report the order Annexure 3 has bee npossed reverting the petitioner and other persons. The order (Ex. 3) even does not disclose that the report was adverse to the petitioner and others. But because of the reversion order, it should be presumed that there may be some adverse report and because of the adverse report the reversion order has been passed, Annexure R-2 is said to be the report, which has been forwarded by the Loco Foreman MTO to the Assistant Personel Officer, Northern Railway Jodhpur on on August 28, 1981. In this report, the Loco Forman has specifically reported against the petitioner as under:

(i) Efficiency of work is lacking;

(ii) Knowledge of work very poor, and

(ii) Habitual or absenting himself from his duties.

These remarks have been given for the petitioner by the Loco Foreman white submitting the reply of the letter dated August 26, 1981 to the Assistant Personnel Officer. In the reply submitted by the respondents in para3, it has been specifically mentioned that 'after completion of six months the case of the petitioner was reviewed by the competent authority on the basis of work report of Loco Foreman. Accordingly, the petitioner was reverted back to the post of High Skilled Fitter.' Learned Counsel for the petitioner submits that circular marked as Ex.2 dated August 31, 1974. it has been specifically provided that during six months period the Administration should give them all facilities for improving their knowledge and coming up to the requisite standard, if necessary by organizing special coaching classes. The cotention of the learned Counsel is that no special coaching classes were organised and during his service he has never been served with any memo or charge sheet. He has also invited my attention to the para 6 of the writ petitioa that 'the working of the petitioner was not reported adversely on any count whatsoever. The Officers under whom he had an opportunity to work were well pleased with his working and they never made any complaint about the working of the petitioner, even during these six months period or there-after until now.' The reply submitted by the respondents is very vague and even there is no reply on this point that any of the Officers under whom he has worked has made any complaint whatsoever against the petitioner. To satisfy the court. It was also necessary to give a detailed reply mentioning the facts of absence and also about the complaints or memos or charge sheets issued against the petitioner if any. Only a vague report of the Loco Foreman will not stand to the scrutiny of the principles of audi lateram partem'. The respondents have not dared to make the submissions that the petitioner has worked under the Loco Foreman. Silence on the point of making the submission in relation to the submissions made in para 6 in specific terms goes against the respondents. It will be further noted that the respondents have filed the additional affidavits dated August 27, 1982. In para 2 of the additional affidavit, it has been mentioned 'after perusal of the report by the D.P.O., all the four persons, namely, Gokul Chand, Bansidhar, Prabhati Lal and Cbhote Lal, the Divisional Manager Railway was satisfied that their further continuation in the High Skilled Fitter will not be conclusive to the efficiency of the administration and accordingly the orders of revision were issued.' This shows that only the report of the Loco Foreman has been considered and the report of the Loco Foreman is only the foundation on the basis of which the reversion orders have been issued. Things would have been different even in additional affidavit they could have mentioned the facts which they have missed in their reply that the memos relating to absence, complaints etc. have also been looked into in addition to the report of the Loco Foreman. It is not the duty of this Court to interfere in the matter of satisfaction. The satisfaction of the Authorities and Tribunals should be considered as well founded generally but the satisfaction should not only be subjective satisfaction, but it must also be objective satisfaction specially in the matter of service. I am of the view that satisfaction of the Divisional Manager, which has been alleged by him, does not stand the test of objective satisfaction and it seems that the order has been passed mechanically without objective satisfaction. It is surprising that inspite of the order of this Court referred to above, the relevant record has not been produced in the Court even up to this date. The other fact which also goes to show that there is some-thing wrong somewhere is that special provision has been made in the circular (Ex .2) for orgainsing the special coaching classes. In case, it is found that it is necessary to do so for the purpose of coming up to the requisite standard. The learned Counsel for the petitioner submits that very fact is that the special coaching classes have not been arranged, should be construed that it was not necessary to arrange for coming up to the requisite standard, as the petitioner was up to this standard. I will not like to make any comments at this stage whether the petitioner was up to the mark or not but it is a consideration which also weighs in my mind, while dealing with the question of natural justice. Thus, I am fully satisfied that the doctrine of 'audi alteram partem' has been violated and the reversion order (Ex. 3) should be quashed.

5. The learned Counsel for the petitioner has submitted that there is a clear and flagrant v. olation of circular (Ex. 2). He has cited the case of Union of India v. K P. Joseph and ors, reported in 1973 S.L.R. (I) SC 910. Their Lordships have held 'to say that an administrative order can never confer any right would be too wide a proposition. There are administrative orders which confer rights and impose duties. It is because that administrative order can abridge or take away rights that we have imported the principle of natural justice of audi alteram partem into this area.' He has also referred the case of Dr. Amarjit Singh Ahuwalia v. State of Punjab and Ors, reported in 1975(1) S.L.R ) SC 171. Their Lordships have held 'it is true that clause (2) (ii) of the memorandum dated 23th October, 1965 was in the nature of administrative instruction, not having the force of law, but the State Goverment could not at its own sweet will depart from it without rational justification and fix an artificial dat for commencing the length of continuoui service in the case of some individual officers only for the purpose of giving them seniority in contravention of that clause. That would be clearly violative of articles 14 and 16 of the Constitution. The sweep of articles 14 and 16 is wide and pervasive. These two articles embody the principle of rationality and they are ntended to strike against arbitrary and discriminatory action taken by the 'State ' Where the State Government departure from a(sic)principle of seniority laid down by administrative instructions, and the departure is without reason and arbitrary, it would directly infringe the guarantee of quality under Articles 14 and 16.' There is no doubt about the proposition laid down by the Supreme Court that the administrative instructions conferp rights and duties and have the bidding force, specially when the rights of the State are affected by the orders of appointments and reversions. The short question, which is involved is whether the circular (Ex. 2) issued by the Railway Board on August 31, 1974, requires the review by the General Manger or not. The petitioner has no where pleaded in the writ petition specifically that the post does not fall within seniority cum-merit-selection. The respd. have filed the reply and in a very guarded language submitted 'on receipt of the un-satisfoctory report from the Loco Foreman matter was placed befor the Competent authority viz. Divisional Manager, Railway who having not been satisfied and that the further continuation of the petitioner will not be in the interest of efficiency, thereby he submits that para number 2 of the circular does not apply in full. He submits that in para Number 3 of the circular (Ex. 2), it has been specificully mentioned that in case of seniority cum-suitability, the review at the end of this period would becarried out by the authority competent to approve the select list. He has also submitted the additional affidavit and has submitted that the post on which the petitioner was promoted falls within the purview of seniority-cum-suitability. The petitioner is not in a position to controvert this fact, so the argument that review should be done by the General Manager is without force and is rejected.

6. In the result, all the four writ petitions are allowed. The orders of reversion passed are hereby set aside. It is further directed that the reviewing authority will be at liberty to assess the work of the petitioners afresh giving them due hearing. Thus, the result is that in all the, four writ petitions the impugned order (Ex. 3) is quashed. The parties will bear their own costs.


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