Ram Chander Vs. Union of India &
Ors [1986] INSC 102 (2 May 1986)
OZA, G.L. (J) OZA, G.L. (J) REDDY, O.
CHINNAPPA (J) SINGH, K.N. (J)
CITATION: 1986 SCC (4) 12 1986 SCALE (1)904
ACT:
Railway Servants (Discipline & Appeal)
Rules 1968, Rule 22(2) - "Consider" - Interpretation of - Duty of
Railway Board to record its findings and pass reasoned order.
Constitution of India, Art. 311(2) - Tulsiram
Patel's case - Effect of - Appellate Authority - Duty of - To give hearing to
delinquent servant - Pass a reasoned order in the departmental appeal.
HEADNOTE:
The appellant who was employed as Shunter,
Grade 'B' was removed from service. The charge against him was that he was
guilty of misconduct in that he had assaulted his immediate superior. As he did
not appear at the enquiry, the Enquiry Officer proceeded ex-parte and examined
witnesses and found the charge proved. The General Manager agreed with the
report of the Enquiry Officer and came to the provisional conclusion that the
penalty of removal from service should be inflicted, issued a show cause notice
to the appellant, who in compliance, showed cause but his explanation was not
accepted. The General Manager by an order dated August 24, 1971 imposed the
penalty of removal from service.
The appellant preferred an appeal before the
Railway Board under rule 18(ii) of the Railway Servants (Discipline and Appeal)
Rules, 1968 but the Railway Board dismissed the appeal. me High Court also
dismissed the writ petition of the appellant holding that since the Railway Board
agreed with the findings of the General Manager, there was no duty cast on the
Railway Board to record reasons for its decision. The appellant's Letters
Patent Appeal before a Division Bench was also dismissed in limine.
Allowing the appeal and remanding the matter
to the Railway Board, 981 ^
HELD: 1. The judgment and order of the Single
Judge and that of the Division Bench are both set aside, so also the impugned
order of the Railway Board dated March 11, 1972.
The Railway Board is directed to hear and
dispose of the appeal after affording a personal hearing to the appellant on
merits by a reasoned order in conformity with the requirements of Rule 22(2) of
the Railway Servants (Discipline and Appeal) Rules, 1968. [999 H; 1000 A-B]
2. Rule 22(2) of the Railway Servants Rules
in express terms requires the Railway Board to record its finding on the three
aspects stated therein. It provides that in the case of an appeal against an
order imposing any of the penalties specified in rule 6 or enhancing any penalty
imposed under the said Rule, the Appellate Authority shall 'consider' as to the
matters indicated therein. [989 E-F]
2.1 The word 'consider' has different shades
of meaning and must in rule 22(2), in the context in which it appears, mean an
objective consideration by the Railway Board after due application of mind
which implies the giving of reasons for its decision. [989 F-G] In the instant
case, the impugned order is just a mechanical reproduction of the phraseology
of rule 22(2) without any attempt on the part of the Railway Board either to
marshall the evidence on record with a view to decide whether the finding
arrived at by the Disciplinary Authority could be sustained or not. There is
also no indication that the Railway Board applied its mind as to whether the
act of misconduct with which the appellant was charged together with the
attendant circumstances and the past record of the appellant were such that he
should have been visited with the extreme penalty of removal from service for a
single lapse in a span of 24 years of service. There being non- compliance with
the requirements of Rule 22(2) of the Railway Servants Rules, the impugned
order passed by the Railway Board is liable to be set aside. [987 A-D]
3. Dismissal or removal from service is a
matter of grave concern to a civil servant, who after such a long period of
service may not deserve such a harsh punishment.
[987 C-D] 982 State of Madras v. A.R.
Srinivasan, A.I.R. [1966 S.C. 1827, Som Datt Datta v. Union of India &
Ors., [1969] 2 S.C.R. 176, Tara Chand Khatri v. Municipal Corporation of Delhi
Ors., [1977] 2 S.C.R. 198 and Madhya Pradesh Industries Ltd. v. Union of India,
[1966] 1 S.C.R. 466, referred to.
4.1 After the constitutional change brought
about by the Forty-Second Amendment the only stage at which now a civil servant
can exercise this valuable right is by enforcing his remedy by way of a
departmental appeal or revision, or by way of judicial review. [997 E-F]
4.2 A civil servant who has been dismissed,
removed or reduced in rank by applying to his case one of the clauses of the
second proviso to Art. 311(2) or the analogous Service Rule has two remedies
available to him. These remedies are: t (i) the appropriate departmental appeal
provided for in the relevant Service Rules ; and (ii) if still dissatisfied,
invoking the Court's power of judicial review. [997 G-H]
4.3 It is of utmost importance after the
Forty-Second Amendment as interpreted by the majority in Tulsi Ram Patel's case
that the Appellate Authority must not only give a hearing to the government
servant, but also pass a reasoned order dealing with the contention raised by
him in the appeal. The duty to give reasons is an incident of the Judicial
process. [999 E-F]
4.4 Reasoned decisions by Tribunals, such as
the Railway Board in the present case, will promote public confidence in the
administrative process. As objective consideration is possible only if the
delinquent servant is heard and given a chance to satisfy the authority
regarding the final orders that may be passed on his appeal.
Considerations of fairplay and justice also
require that such a personal hearing should be given. [999 F-G] R.P. Bhatt v.
Union of India & Ors., (C.A.No. 3165/81 decided on Dec. 14, 1982), Union of
India & Anr. v. Tulsiram Patel, [1985] 3 S.C.C. 398, Secretary, Central
Board of Excise & Customs & Ors. v. R.S. Mahalingam (C.A. No. 1279/86
decided on April 24, 1986 and Satyavir Singh & Ors. v. Union of India &
Ors., [1985] 4 S.C.C. 252, relied upon.
983 5. High Commissioner for India v. I.M.
Lall, L.R. (1947-48) 75 I.A. 225, Khem Chand v. Union of India & Ors.,
[1958] S.C.R. 1080 and Swadeshi Cotton Mills v. Union of India, [1981] 2 S.C.R.
533, referred to.
The majority decision in Tulsiram Patel's
case seeks to justify the amendment effected by the Forty-Second Amendment of
c1.(2) of Art. 311 by observing that 'c1.(2) of Art. 311 as originally enacted
and the legislative history of that clause wholly rule out the giving of any
opportunity'. The Court expressed its reservations about the correctness of
this proposition. [992 C-E]
CIVIL APPELLATE JURISDICTION: Civil Appeal No.
1621 of 1986.
From the Judgment and Order dated 15th
February, 1984 of the Delhi High Court in L.P.A. No. 178 of 1983.
M.K. Ramamurthi, M.A. Krishnamoorthy and Mrs.
Chandan for the Appellant. O.P. Sharma, P.P. Singh and C.V. Subba Rao for the
Respondent.
The Judgment of the Court was delivered by
SEN, J. The central question in this appeal is whether the impugned order
passed by the Railway Board dated March 11, 1972 dismissing the appeal
preferred by the appellant, was not in conformity with the requirements of
r.22(2) of the Railway servants (Discipline & Appeal) Rules, 1968. At the
hearing on February 13, 1986, learned counsel for the Union of India took time
to enable the Railway Board to reconsider its decision as to the quantum of
punishment. At the resumed hearing on March 13, 1986 we were informed by the
learned counsel that there was no question of the Railway Board reconsidering
its decision. Arguments were accordingly heard on the question as to whether
the impugned order of the Railway Board was sustainable in law. We heard the
parties and allowed the appeal by order dated March 13, 1986 directing the
Railway Board to hear and decide the appeal afresh on merits in accordance with
984 law in conformity with the requirements of r.22(2) of the Rules. We now
proceed to give reasons therefor.
The facts, the appellant Ram Chander,
Shunter, Grade at Loco Shed Ghaziabad was inflicted the penalty of removal from
service under r.6(viii) of the Railway Servants (Discipline & Appeal)
Rules, 1968 by order of the General Manager, Northern Railway dated August 24,
1971. The gravamen of the charge was that the appellant was guilty of
misconduct in that he had October 1, 1969 at 7.30 p.m.
assaulted his immediate superior Banarsi Das,
Assistant Loco Foreman while he was returning after performing his duties.
The immediate cause for the assault was that
the appellant had on September 30, 1969 applied for medical leave for one day
i.e. for October 1, 1969. On that day there was a shortage of Shunters, he
accordingly asked Banarsi Das for the cancellation of leave and permit the
appellant to resume his duties but Banarsi Das refused to cancel the leave. It
is said that the appellant nursed a grouse against Banarsi Das because his
refusal to permit him to resume his duties deprived him of the benefit of one
day's additional wages for October 2, 1969 which was a national holiday. The
Enquiry Officer fixed the date of enquiry on May 11, 1970 at Ghaziabad. The
enquiry could not be held on that date due to some administrative reasons and
was then fixed for the July 11, 1970. The appellant was duly informed of the
date but he did not appear at the enquiry. The Enquiry Officer accordingly
proceeded ex parte and examined witnesses. By his report dated May 26, 1971,
the Enquiry Officer found the charge proved. The General Manager agreed with
the report of the Enquiry Officer and came to the provisional conclusion that
the penalty of removal from service should be inflicted and issued a show cause
notice dated May 26, 1971. In compliance the appellant showed cause but his
explanation was not accepted. The General Manager, however, by order dated
August 24, 1971 imposed the penalty of removal from service. The appellant
preferred an appeal before the Railway Board under r.18(ii) of the Railway
Servants (Discipline & Appeal) Rules, 1968 but the Railway Board by the
impugned order dated March 11, 1972 dismissed this appeal. Thereafter, the
appellant moved the High Court by a petition under Art. 226 of the
Constitution. A learned Single Judge by his order dated August 16, 1983
dismissed the writ petition holding that since the Railway Board agreed with
the findings 985 of the General Manager there was no duty cast on the Railway
Board to record reasons for its decision. me appellant therefore preferred a
Letter Patent Appeal, but a Division Bench by its order dated February 15, 1984
dismissed the appeal in in limine.
Rule 22(2) of the Railway Servants Rules
provided as follows :
"22(2) In the case of an appeal against
an order imposing any of the penalties specified in Rule 6 or enhancing any
penalty imposed under the said rule, the appellate authority shall consider - C
(a) Whether the procedure laid down in these rules has been complied with, and
if not, whether such non-compliance has resulted in the violation of any
provisions of the Constitution of India or in the failure of justice ; D (b)
whether the findings of the disciplinary authority are warranted by the
evidence on the record; and (c) whether the penalty or the enhanced penalty
imposed is adequate, inadequate or severe ;
and Pass orders - (i) confirming, enhancing,
reducing or setting aside the penalty, or F (ii) remitting the case to the
authority which imposed or enhanced the penalty or to any other authority with
such directions as it may deem fit in the circumstances of the case :
The duty to give reasons is an incident of
the judicial process. So, in R.P. Bhatt v. Union of India & Ors., (C.A.
No. 3165/81 decided on December 14, 1982)
this Court, in somewhat similar circumstances, interpreting r.27(2) of the
Central Civil Services (Classification, Control & Appeal) Rules, 1965 which
provision is in parimateria with r.22(2) of 986 the Railway Servants
(Discipline & Appeal) rules, 1968, observed :
"It is clear upon the terms of r.27(2)
that the appellate authority is required to consider (1) whether the procedure
laid down in the rules has been complied with; and if not, whether such non
compliance has resulted in violation of any of the provisions of the
Constitution of India or in the failure of justice ; (2) whether the findings
of the disciplinary authority are warranted by the evidence on record ; and (3)
whether the penalty imposed is adequate, inadequate or severe, and pass orders
confirming, enhancing, reducing or setting aside the penalty, or remit back the
case to the authority which imposed or enhanced the penalty, etc." It was
held that the word 'consider' in r.27(2) of the Rules implied 'due application
of mind'. The Court emphasized that the Appellate Authority discharging
quasi-judicial functions in accordance with natural justice must give reasons
for its decisions. There was in that case, as here, no indication in the
impugned order that the Director-General, Border Road Organisation, New Delhi
was satisfied as to the aforesaid requirements. The Court observed that he had
not recorded any Findings on the crucial question as to whether the Findings of
the disciplinary authority were warranted by the evidence on record. In the
present case, the impugned order of the Railway Board is in these terms :
"(1) In terms of rule 22(2) of the
Railways Servants (Discipline & Appeal) Rules, 1968, the Railway Board have
carefully considered your appeal against the orders of the General Manager,
Northern Railways, new Delhi imposing on you the penalty of removal from
service and have observed as under :
(a) by the evidence on record, the findings
of the disciplinary authority are warranted ; and (b) the penalty of removal
From service imposed on you Is merited.
987 (2) The Railway Board have therefore
rejected the appeal preferred by you." To say the least, this is just a
mechanical reproduction of the phraseology of r.22(2) of the Railway Servants
Rules without any attempt on the part of the Railway Board either to marshall
the evidence on record with a view to decide whether the findings arrived at by
the disciplinay authority could be sustained or not. There is also no indication
that the Railway Board applied its mind as to whether the act of misconduct
with which the appellant was charged together with the attendant circumstances
and the past record of the appellant were such that he should have been visited
with the extreme penalty or removal from service for a single lapse in a span
of 24 years of service.
Dismissal or removal from service is a matter
of grave concern to a civil servant who after such a long period of service,
may not deserve such a harsh punishment. There being non-compliance with the
requirements of r.22(2) of the Railway Servants Rules, the impugned order
passed by the Railway Board is liable to be set aside.
It was not the requirement of Art. 311(2) of
the Constitution prior to the Constitution (Forty-Second Amendment) Act, 1976
or of the rules of natural justice, that in every case the appellate authority
should in its order state its reasons except where the appellate authority
disagreed with the findings of the disciplinary authority.
In State of Madras v. A.R. Srinivasan, A.I.R.
[1966] S.C. 1827 a Constitution Bench of this Court while repelling the
contention that the impugned order by the State Government accepting the
findings being in the nature of quasi-judicial proceedings was bad as it did
not give reasons for accepting the findings of the Tribunal, observed as
follows :
"In dealing with the question as to
whether it is obligatory on the State Government to give reasons in support of
the order, imposing a penalty on the delinquent officer, we cannot overlook the
fact that the discipline proceedings against such a delinquent officer begin
with an enquiry conducted by an officer appointed in that behalf. That enquiry
is followed by report and the Public Service Commission is consulted where
necessary.
988 Having regard to the material which is
thus made available to the State Government and which is made available to the
delinquent officer also, it seems to us somewhat unreasonable to suggest that
the State Government must record its reasons why it accepts the findings of the
Tribunal. It is conceivable that if the State Government does not accept the
findings of the Tribunal which may be in favour of the delinquent officer and
proposes to impose a penalty on the delinquent officer, it should give reasons
why it differs from the conclusion of the Tribunal, though even in such a case,
it is not necessary that the reasons would be detailed or elaborate. But where
the State Government agrees with the findings of the Tribunal which are against
the delinquent officer, we do not think as a matter of law, it could be said
that the State Government cannot impose the penalty against the delinquent
officer in accordance with the findings of the Tribunal unless it gives reasons
to show why the said findings were accepted by it. The proceedings are, no
doubt, quasi-judicial; but having regard to the manner in which these enquiries
are conducted, we do not think an , obligation can be imposed on the State
Government to record reasons in every case." Again, in Som Datt Datta v.
Union of India & Ors., [1969] 2 S.C.R. 176 a Constitution Bench of this
Court rejected the contention that the order of the Chief of the Army Staff
confirming the proceedings of the General Court Martial under 3. 164 of the Army
Act, 1950 and the order of the Central Government dismissing the appeal of the
delinquent officer under s. 165 of the Act were illegal and ultra vires as they
lid not give reasons in support of the orders, and summed up the legal position
in these words :
"Apart from any requirement imposed by
the statute or statutory rules either expressly or by necessary implication,
there is no legal obligation that the statutory tribunal should give reasons
for its decision. There is also no general principle or any 989 rule of natural
justice that a statutory tribunal should always and in every case give reasons
in support of its decision." So also in Tara Chand Rhatri v. Municipal
Corporation of Delhi & Ors.. [1977] 2 S.C.R. 198 this Court observed that
there was a vital difference between an order of reversal by the appellate
authority and an order of affirmance and the omission to give reasons for the
decision may not by itself be a sufficient ground for passing such order,
relying on the test laid down by Subba Rao, J. in Madhya Pradesh Industries
Ltd.. v. Union of India [1966] 1 S.C.R. 466.
"Ordinarily, the appellate or revisional
authority shall give its own reasons succinctly; but in a case of affirmance
where the original tribunal gives adequate reasons, the Appellate Tribunal may
dismiss the appeal or the revision, as the case may be, agreeing with those
reasons." D These authorities proceed upon the principle that in the
absence of a requirement in the statute or the rules, there is no duty cast on
an appellate authority to give reasons where the order is one of affirmance.
Here, r. 22(2) of the Railway Servants Rules in express terms requires the
Railway Board to record its findings on the three aspects stated therein.
Similar are the requirements under r. 27(2) of the Central Civil Services
(Classification, Control & Appeal) Rules, 1965. R. 22(2) provides that in
the case of an appeal against an order imposing any of the penalties specified
in r. 6 or enhancing any penalty imposed under the said rule, the appellate
authority shall 'consider' as to the matters indicated therein. The word
'consider' has different shades of meaning and must in r.22(2), in the context
in which it appears, mean an objective consideration by the Railway Board after
due application of mind which implies the giving of reasons for its decision. G
After the amendment of c1.(2) of Art. 311 of the Constitution by the
Constitution (Forty-Second Amendment) Act, 1976 and the consequential change
brought about in r.10(5) of the Railway servants (Discipline & Appeal)
Rules, 1968, substituted by the Railway Servants (Discipline & Appeal) 990
(Third Amendment) Rules, 1978, it is no longer necessary to afford a second
opportunity to the delinquent servant to show cause against the punishment. The
Forty-Second Amendment has deleted from c1.(2) of Art. 311 the requirement of a
reasonable opportunity of making representation on the proposed penalty and,
further, it has been expressly provided inter alia in the first proviso to
c1.(2) that :
"Provided that where it is proposed
after such inquiry, to impose upon him any such penalty, such penalty may be
imposed on the basis of the evidence adduced during such enquiry and it shall
not be necessary to give such person any opportunity of making representation
on the penalty proposed." After the amendment, the requirement of c1.(2)
will be satisfied by holding an inquiry in which the Government servant has
been informed of the charges against him and given a reasonable opportunity of
being heard. But the essential safeguard of showing his innocence at the second
stage i.e. after the disciplinary authority has come to a tentative conclusion
of guilt upon a perusal of the findings reached by the Inquiry Officer on the
basis of the evidence adduced, as also against the proposed punishment, has
been removed to the detriment of the delinquent officer. In view of the said
amendment of Art. 311(2) of the Constitution, r.10(5) of the Railway Servants
Rules has been substituted to bring it in conformity with c1.(2) of Art. 311,
is amended. R. 10(5), as substituted, provides as follows :
"10(5). If the disciplinary authority,
having regard to its findings on all or any of the articles of charge and on
the basis of the evidence adduced during the inquiry, is of the opinion that
any of the penalties specified in clauses (v) to (ix) of rule 6 should be
imposed on the railway servant, it shall make an order imposing such penalty
and it shall not be necessary to give railway servant any opportunity of making
representation on the penalty proposed to be imposed :
991 Provided that in every case where it is
necessary to consult the Commission, the record of the inquiry shall be
forwarded by the disciplinary authority to the Commission for its advice and
such advice shall be taken into consideration before making an order imposing
any such penalty on the railway servant." We may here mention that a
corresponding change in the Central Civil Services (Classification, Control
& Appeal) Rules, 1965 has been brought by substituting r.15(4) taking away
the procedural safeguard of making a representation at C the second stage i.e.
before imposing punishment on the basis of the evidence at the inquiry.
In Union of India & Anr. v. Tulsiram
Patel, [1985] 3 S.C.C. 398 a five-judge Bench by a majority of 4:1 held that
where a departmental inquiry was wholly dispensed with in the three situations
under the second proviso to Art.
311(2), the only right to make a
representation on the proposed penalty which was to be found in c1.(2) of Art.
311 of the Constitution prior to its amendment having been taken away by the
Constitution (Forty-Second Amendment) Act, 1976, there is no provision of law
under which a Government servant can claim this right. This Court last week in
the secretary, Central Board of; Excise & Customs & Ors. v. K.S. Mahalingam
(C.A.No.1279/86 decided on April 24, 1986) after referring to the
constitutional changes brought about observed :
"After the amendment, the requirement of
c1.(2) will be satisfied by holding an inquiry in which the Government servant
has been informed of the charges against him and given a reasonable opportunity
of being heard." After the majority decision in Tulsiram Patel's case, it
can no longer be disputed that the right to make a representation on the
proposed penalty which was to be found in c1.(2) of Art. 311 of the
Constitution having been taken away by the Forty-Second Amendment, there is no
provision of law under which a Government servant can claim this right.
992 It seems to be purely academic to refer
to the vintage decisions of the Privy Council in High Commissioner for India v.
I.M.. Lall, L.R. [1947-48] 75 IA 225 and that of this Court in Khem Chand v.
Union of India & Ors., [1958] S.C.R. l080 following it or the plethora of
decisions thereafter which have now become otiose after the Forty- Second
Amendment by which the words ' a reasonable opportunity of showing cause
against the action proposed to be taken in regard to him' were deleted at the
end of cl. (2) of Art. 311 and proviso to cl.(2) substituted, with the object
of doing away with the second opportunity of making representation at the stage
of imposing penalty i.e. at the conclusion of the inquiry. It is however
necessary to refer to these two decisions briefly with the object of showing
the prejudicial effect on such delinquent Government servants. More so, because
the majority decision in Tulsiram Patel's case seeks to justify the amendment
effected by the Forty-Second Amendment of cl. (2) of Art. 311 by observing that
'cl. (2) of Art. 311 as originally enacted and the legislative history of that
clause wholly rule out the giving of any opportunity'. We have our own
reservations about the correctness of this proposition. It is not quite
accurate to suggest that the opportunity of showing cause before a Government
servant was dismissed, removed or reduced in rank was not contemplated by law
nor justified by the legislative history.
In I.M. Lall's case, Lord Thankerton while
interpreting the words ' a reasonable opportunity of showing cause against the
action proposed to be taken in regard to him' Ln sub-s.(3) of s. 240 of the
Government of India Act, 1935 speaking for the Judicial Committee of the Privy
Council, observed :
"In the opinion of their Lordships, no
action is proposed within the meaning of the sub-section until a definite
conclusion has been come to on the charges, and the actual punishment to follow
is provisionally determined on. Before that stage, the charges are unproved and
the suggested punishments are merely hypothetical." (Emphasis supplied)
993 That very distinguished Judge went on to say : A "It is on that stage
reached that the statute gives the civil servant the opportunity for which
sub-s.(3) makes provision." And then added :
"Their Lordships would only add that
they see no difficulty in the statutory opportunity being reasonably afforded
at more than one stage. If the civil servant has been through an enquiry under
Rule 55, it would not be reasonable that he should ask for a repetition of that
stage, if duly carried out but that would not exhaust his statutory right, and
he would still be entitled to represent against the punishment proposed as the
result of the findings of the inquiry." The phrase ' a reasonable
opportunity of showing cause against the action proposed to be taken in regard
to him' appearing in sub-s. (3) of s. 240 of the Government of India Act, 1935
was reproduced in cl. (2) of Art. 311 of the Constitution as originally enacted
i.e. prior to its amendment by the Constitution (Fifteenth Amendment) Act,
1963. It would appear that in the original Art. 311(2) as it stood before the
Fifteenth Amendment, the obligation to afford an opportunity at two stages,
namely, at the stage of inquiry into the charges and, again, at the stage of
awarding punishment, was not explicitly stated in the Article itself. It merely
required that opportunity must be given to show cause against the 'action
propposed'. As already stated, the obligation to offer such opportunity at two
stages was however deduced judicially by the Privy Council in I.M. Lall's case.
In Khem Chand's case, the Court following the
judgment of the Privy Council in I.M. Lall's case came to the same conclusion
from the word 'reasonable'. The Government servant must not only be given an
opportunity but such opportunity must be a reasonable one. In order that the
opportunity to show cause against the proposed action may be regarded as a
reasonable one, it is quite necessary that the Government servant should have
the opportunity, to say, if that be his 994 case, that he has not been guilty
of any misconduct to merit any punishment at all and also that the particular
punishment proposed to be given is much more drastic and severe than he deserves.
It referred to the above passages from the judgment of the Privy Council in
I.M. Lall's case, and observed :
"Further opportunity is to be given to
the Government servant after the charges have been established against him and
a particular punishment is proposed to be meted out to him." In short, the
substance of the protection provided by Rules, like r. 55 referred to above,
was bodily lifted out of the rules and together with an additional opportunity
embodied in s.240(3) of the Government of India Act, 1935 so as to give a
statutory protection to the Government servants and had now been incorporated
in Art. 311(2) so as to convert the protection into a constitutional safeguard.
The legal consequence therefore was that :
"At the second stage, the delinquent
Government servant was therefore entitled to contend - (a) that the inquiry at
which the findings were arrived at was vitiated by a breach of the Principles
of natural justice.
(b) That the findings were not supported by
the evidence in the proceedings, or that the evidence against him was not
worthy of credence or that he was not guilty of any misconduct to merit and
punishment at all.
(c) That the punishment proposed could not be
properly awarded on the findings arrived at, that is to say, the charges proved
did not require the Particular punishment proposed to be awarded." After
Parliament frustrated the attempt of the Government to delete the
constitutional safeguard as evolved by this Court in Khem Chand's case
following the principles laid down in the Privy Council decision in I.M. Lall's
case by deletion of the words ' a reasonable opportunity of showing cause 995
against the action proposed to be taken in regard to him' by the Constitution
(Fifteenth Amendment) Act, 1963, it seems somewhat strange that after more than
a decade the Government of the day thought it fit to remove this valuable
safeguard by the Forty-Second Amendment. It is particularly important to notice
how closely Members of Parliament scrutinised the motives of the Government
while discussing the Fifteenth Amendment Bill and it is profitable to read the
debates leading to the passsng of the Fifteenth Amendment. m ere could scarcely
be a better example of the principle that the constituent powers to amend the
Constitution, however permissible, must be used with scrupulous attention to
their true purpose and for reasons that are relevant and proper. A determined
attempt on the part of the Government to unsertle the law as laid down by this
Court was successfully frustrated on that occasion.
Although the clause as originally drafted in
the Amendment Bill was deficient insofar as it conferred no express protection
as regards the second stage i.e. the stage of punishment, but the Fifteenth
Amendment Act as passed, introduced the requirement of giving a reasonable
opportunity on the penalty proposed, after the conclusion of the inquiry into
the charges and after a penalty had been provisionally determined. After
considerable debate in Parliament, Shri Ashok Sen, Law Minister, intervened, in
deference to the concern expressed by Members representing all sections of the
House over the Amendment Bill by which the Government was seeking to remove the
opportunity at the second stage, and gave an assurance that he would move an
amendment, making it clear that the second opportunity in regard to the
punishment proposed would be retained, but such opportunity shall be only on
the basis of the evidence adduced during the inquiry. me Government accordingly
moved the following amendment :
"And where it is proposed, after such
inquiry, to impose on him any such penaltty, until he has been given a
reasonable opportunity of making representation on the penalty proposed, but
only on the basis of the evidence adduced during such inquiry." We may recall
the words of the law Minister on that occasion while intervening in the debate
on the original draft:
996 "Now, Sir, as I explained, when the
motion was first before the House and before it went to the Joint Committee it
was never the intention of the Government to vary rule 25 of the civil service
rules which provided for representation by the civil servant against the
penalty proposed. me point taken was that in future some irresponsible
Government might do way with rule 25 ignoring the assurance given to
Parliament. Well, then, I told the representatives of the civil servants and
other representatives of the INTUC who had come to see me to give me a draft
which would make it quite clear that the representation against the penalty
proposed would not include any right to insist on further hearing and further
evidence being given. They gave me that draft which I have accepted with a
slight modification.
I, therefore, dispel any idea, if there is
any, that there has been any-deviation from the ideals of democracy and
preservation of the vital rights not only of civil servants but of the
citizens. I hope we shall never deviate from that course because it-is our
great strength and it is through the processes of democracy that we are
functioning, not through the processes of fear or force. (Lok Sabha Debates,
3rd Series, Vol. XVIII, 1963, 4th Session, p. 13152-54).
The Fifteenth Amendment, in fact, clarified
the legal position under the existing law by requiring that opportunity must be
given to the delinquent Government servant not only at the first stage to be
heard in respect of the charges but also at the second stage i.e. after the
disciplinary authority had come to a tentative conclusion of guilt at the
conclusion of the inquiry and had decided upon the punishment proposed to be
inflicted. It was a necessary and sufficient safeguard against arbitrary and
excessive executive action written into the Constitution.
Unfortunately, now the Forty-Second Amendment
has achieved what the Fifteenth Amendment could not. By the constitutional
amendment, the Government has taken away the essential Constitutional
safeguard.
997 It is a fundamental rule of law that no
decision must be A taken which will affect the rights of any person without
first glving him an opportunity of putting forward his case. Both the Privy
Council as well as this Court have in a series of cases required strict
adherence to the rules of natural justice where a public authority or body has
to deal with rights. Unfortunately the first proviso to cl. (2) of Art. 311 has
eliminated the rule audi alteram partem at the second stage i.e. Observance of
the rules of natural justice and the requirement of a reasonable opportunity of
making representation on the proposed action. The question still remains as to
the stage when the delinquent Government servant would get the opportunity of
showing cause against the action taken against him. Where does he get an
opportunity to exonerate himself from the charge unless he is allowed to show
that the evidence adduced at the inquiry is not worthy of credence or
consideration ? Does he ever get a right to show that he has not been guilty of
any misconduct so as to deserve any punishment, or that the charges proved
against him are not of such a character as to merit the extreme penalty of
dismissal or even of removal or reduction in rank and that any of the lesser
punishments ought to have been sufficient in his case ? But we are bound by the
majority decision in Tulsiram Patel's case.
After the constitutional change brought about
it seems that the only stage at which now a civil servant can exercise this
valuable right is by enforcing his remedy by way of a departmental appeal or
revision, or by way of judicial review . In Tulsiram Patel's case, -the
majority decision has pointed out that even after the Forty-Second Amendment,
the inquiry required by c1.(2) of Art. 311 would be the same except that it
would not be necessary to give to a civil servant an opportunity to make
representation with respect to the penalty proposed to be imposed on him. In
such a case, a civil servant who has been dismissed, removed or reduced in rank
by applying to his case one of the clauses of the second proviso to Art.311 (2)
or the analogous Service Rule has two remedies available to him.
These remedies are : (i) the appropriate
departmental appeal provided for in the relevant Service Rules, and (ii) if
still dissatisfied, invoking the Court's power of judicial review. In Satyavir
Singh & Ors. v. Union of India & Ors., [1985] 4 S.C.C. 252 there is an
attempt made to analyse the ratio of the majority decision in Tulsiram Patel's
998 case and the nature of the remedies left to the civil servant at pp.276-281
of the report. If that be so, in a case governed by one of the clauses of the
second proviso to Art. 311(2) or an analogous Service Rule, there is still all
the more reason that in cases not governed by the second proviso, a civil
servant subjected to disciplinary punishment of dismissal, removal or reduction
in rank under cl. (2) of Art. 311 would have these remedies left to him.
Virtually this is tantamount to a
post-decisional hearing.
There has been considerable fluctuation of
judicial opinion in England as to whether a right of appeal is really a
substitute for the insistence upon the requirement of a fair hearing or the
observance of natural justice which implies 'the duty to act judicially'.
Natural justice does not require that there should be a right of appeal from
any decision. This is an inevitable corollary of the fact that there is no
right of appeal against a statutory authority unless the statute so provides.
Professor H.W.R.Wade in his Administrative Law, 5th edn., at p. 487 observed :
"Whether a hearing given on appeal is an
acceptable substitute for a hearing not given, or not properly given, before
the initial decision is in some cases an arguable question. In principle there
ought to be an observance of natural justice equally at both stages.... If
natural justice is violated at the first stage, the right of appeal is not so
much a true right of appeal as a corrected initial hearing: instead of fair
trial followed by appeal, the procedure is reduced to unfair trial followed by
fair trial." After referring to Megarry, J.'s dictum in a trade union
expulsion case holding that, as a general rule, a failure of natural justice in
the trial body cannot be cured by a sufficiency of natural justice in the
appellate body, the learned author observes :
"Nevertheless it is always possible that
some statutory scheme may imply that the 'appeal' is to be the only hearing
necessary." Professor de Smith at pp. 242-43 refers to the recent greater
readiness of the Courts to find a breach of natural justice 'cured' by a
subsequent hearing before an appellate 999 tribunal. In Swadeahi Cotton Mills
v. Union of India, [1981] 2 S.C.R. 533 although the majority held that the rule
of audi alteram partem was not excluded from s.18A(1)(a) of the Industrial
Undertakings (Development and Regulation) Act, 1951, Chinnappa Reddy, J.
dissented with the view and expressed that the expression 'immediate action'
may in certain situations mean exclusion of the application of the rules of
natural justice and a post-decisional hearing provided by the statute itself
may be a sufficient substitute. It is not necessary for our purposes to go into
the vexed question whether a post-decisional hearing is a substitute of the
denial of a right of hearing at the initial stage or the observance of the
rules of natural justice since the majority in Tulsiram Patel's case unequivocally
lays down that the only stage at which a Government servant gets 'a reasonable
opportunity of showing cause against the action proposed to be taken in regard
to him' i.e. an opportunity to exonerate himself from the charge by showing
that the evidence adduced at the inquiry is not worthy of credence or
consideration or that the charge proved against him are not of such a character
as to merit the extreme penalty of dismissal or removal or reduction in rank
and that any of the lesser punishments ought to have been sufficient in his
case, is at the stage of hearing of a departmental appeal. Such being the legal
position, it is of utmost importance after the Forty-Second Amendment as
interpreted by the majority in Tulsiram Patel's case that the Appellate
Authority must not only give a hearing to the Government servant concerned but
also pass a reasoned order dealing with the contentions raised by him in the
appeal. We wish to emphasize that reasoned decisions by tribunals, such as the
Railway Board in the present case, will promote public confidence in the
administrative process. An objective consideration is possible only if the
delinquent servant is heard and give a chance to satisfy the Authority
regarding the final orders that may be passed on his appeal. Considerations of
fairplay and justice also require that such a personal hearing should be given.
In the result, the appeal must succeed and is
allowed.
The judgment and order of a learned Single
Judge of the Delhi High Court dated August 16, 1983 and that of the Division
Bench dismissing the Letters Patent Appeal filed by the 1000 appellant in
limine by its order dated February 15, 1984 are both set aside, so also the
impugned order of the Railway Board dated March 11, 1972. We direct the Railway
Board to hear and dispose of the appeal after affording a personal hearing to
the appellant on merits by a reasoned order in conformity with the requirements
of r.22(2) of the Railway Servants (Discipline & Appeal) Rules, 1968, as
expeditiously as possible, and in any event, not later than four months from
today.
A.P.J. Appeal allowed.
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