Railway Officers Assn. & ANR. Vs. Union of India & Ors.  INSC
1385 (4 August 2009)
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS. 4835 -
4839 OF 2007 Southern Railway Officers Assn. and another .... Appellants Versus
Union of India and others .... Respondents WITH CIVIL APPEAL NO. 4894 OF 2007
The Workshop Manager and another .... Appellants Versus G. Lakshmanan ....
Respondent WITH CIVIL APPEAL NO. 4895 OF 2007 Union of India and others ....
Appellants Versus P. Manoharan .... Respondent WITH CIVIL APPEAL NO. 5074 OF
2007 Union of India and others .... Appellants Versus V.S. Chandran ....
Respondent WITH CIVIL APPEAL NO. 5074 OF 2007 Union of India and another ....
Appellants Versus K. Babu Rajendran and others .... Respondents And CIVIL
APPEAL NO..__________of 2009 (Arising out of SLP (C) No. 18948 of 2007) Union
of India and another .... Appellants Versus L. Arputharaj and others ....
Leave granted in SLP (C) No.18948 of 2007.
Application of the second proviso appended to clause (2) of
Article 311 of the Constitution of India and Rule 14 (ii) of the Railway
Servants (Discipline and Appeal) Rules, 1968 (hereinafter referred to, for the
sake of brevity, as the "said rules") is involved in these appeals.
K. Babu Rajendran, L. Arputharaj, G. Lakshmanan, V.S. Chandran and
P. Manoharan, had been working in Carriage and Wagon Workshop of the South
Eastern Railway Administration of Union of India.
One S.M. Krishnan was a Deputy Chief Mechanical Engineer, Carriage
and Wagon, Golden Rock Workshop in the South Eastern Railway Administration. He
was the disciplinary authority of the workmen working in the said workshop. He
superannuated on 31st January, 2004. He was to go to his native place. He was
to board Train No. 6128 from Tiruchirappalli Railway station for Chennai. Some
officers had come to platform No.4 of the said Railway station to see him off.
A disciplinary proceeding was initiated against L. Arputharaj. On
the basis of a report submitted by the enquiry officer, he was imposed a
punishment of dismissal from service against him. It is, however, stated that
although an appeal from the said order was dismissed, on a revision preferred
by the said delinquent official punishment of dismissal was set 3 aside and he
was directed to be posted as Technician Grade III at the bottom of the scale
with non recurring effect for a period of three years.
The delinquent employees came to the railway station. They started
abusing Shri S.M. Krishnan with filthy language. He was said to have been
assaulted. He and his family members were threatened to be killed if he goes to
Chennai. Other railway officers were also present at the same place.
delinquent employees allegedly created ugly scene at the platform which was
witnessed by several railway officers, staff and passengers who were waiting at
the platform. An atmosphere of violence, general indiscipline and
insubordination was prevailing at the railway station. The other officers were
also threatened, intimidated and terrorized. The matter was reported to the
Trichy Police station. On the basis of a statement made in this behalf, a First
Information Report being No. 50 of 2004 was recorded.
K. Babu Rajendran was arrested on the same day while others were
arrested after two weeks.
The incident was reported to the disciplinary authority. On the
same day a notice of dismissal from service had been issued against all the
delinquent employees, the material portion whereof read as under:- 4
"Officers and staff who were present at the station to see him off tried
to protect him and for this all the offices were badly abused by you and
you threatened that you will kill Shri S.M. Krishnan and his family in his
house even if he goes to Chennai. It was a pre-planned attempt by you to
assault and cause bodily harm to Sri S.M. Krishnan. That this was preplanned is
substantiated by the fact that a handwritten poster was displayed in the
Workshop as well as at the Railway Station, wherein it was stated that Shri
S.M. Krishnan will die on 31.1.2004 and cremation will be done at 14.30 hrs.
Knowing that Shri S.M. Krishnan is to travel by train No.6128 at 14.30 hrs.,
you along with a mob assaulted Shri S.M. Krishnan in broad day light in
presence of several Railway Officers, staff and passengers.
it is proved beyond doubt that you conspired and assaulted Shri S.M. Krishnan.
of this incident, Shri S.M. Krishnan could not undertake the journey as planned
because of threat to his life and was forced to undertake the journey by road
deliberately assaulted Shri S.M. Krishnan. You threatened to kill Shri S.M. Krishnan
and his family members. In addition you threatened to cause bodily harm to the
officers present at the platform if they tried to associate with Shri S.M.
Krishnan. Thus, you intimidated all the officers’ present causing insecurity
and fear amongst officers.
with other associates threatened, intimidated and terrorized all the officers.
The atmosphere of violence, general indiscipline and insubordination is
prevailing. In view of this situation I am convinced that it is not reasonably
practicable to hold an enquiry."
Appeals were preferred there against. By separate orders, the
appellate authority dismissed the said appeals not only upon taking into consideration
the documents which were available with the disciplinary authority but also the
newspaper clippings and the confidential reports of the employees of GOC shop.
The said documents were kept confidential on their request as leaking thereof
might endanger their lives as also security of their family members.
appellate authority held :- "... It indicates that you and your associates
had created an atmosphere of fear and terror in the minds of all the Railway
men of GOC shop so much that they were afraid to comment and name the persons
who assaulted Mr. S.M. Krishnan on 31.1.2004 at platform-4."
with the defence taken by the respondents that GOC shop closes at 1130 hours on
every Saturday followed by the weekly off period, they were entitled to be at
the railway station, it was observed :- "The disciplinary action against
you for the incident of Mr. S.M. Krishnan which has taken place outside the
work spot is in order as per rules 3-1(iii) of RS (Conduct) Rules, 1966. I also
find 6 that in your appeal, you did not deny the incident of Mr. S.M. Krishnan
at platform-4 of Trichy railway station around 14.30 hours on 31.1.2004, but
mentioned that you were not involved in the incident and to this effect you
have not substantiated your stand with evidence.
Railway is passing through a very difficult phase for providing safe, better
and economic services to the passengers for which in all the workshops
including GOC shop, discipline of high order is required for peaceful working.
The Railway men who create terror, indiscipline, insubordination, violence etc.
have to be dealt drastically in the broader interest of society as well as
Railway so that the common and sincere workmen remain free from fear of
undisciplined co-worker and do the job peacefully. The indiscipline displayed
by you and your associates at Platform-4 has demoralized the entire hierarchy
of Railway-men including officers of the workshop...."
Revision applications were filed thereagainst by the delinquent
employees except L. Arputharaj before the General Manager, Southern Railway.
In the meantime the delinquent employees were acquitted from the
criminal charges. The revisional authority took the said fact into
consideration to hold :- "As regards the judgment delivered by the
Honourable Judicial Magistrate Court IV/ 7 Tiruchirapalli, you have been
acquitted and released from the criminal case No.287/2004 because of extending
the benefit of doubt raised in the case, in your favour and not on merit of the
case or on technical reasons, hence there is no scope to review the penalty of
dismissal from service, consequent on the above judgment."
revisional authority, however, while dismissing the revision application of K.
Babu Rajendran, allowed in part the revision applications of other three
delinquents stating :- " However, by considering the case purely on
humanitarian grounds, I take a lenient view and set aside the penalty of
Dismissal from Service and reinstate you in service with the penalty of
reduction to the lower post of Helper Gr.II in scale Rs.2550-3200 on pay
Rs.2550/ for a period of ten years with cumulative effect and on reinstatement
you are posed to ..... Department of .... Division.
intervening period of your absence from duty i.e. from the date of Dismissal
from Service (31.01.2004) to the date of joining for duty on reinstatement in
service after the receipt of this advice will be treated as `Non-Duty'."
All the five delinquent employees filed Original Applications
before the Central Administrative Tribunal, Madras Bench against the said
The Tribunal framed the following three issues for determination
:- "i) Whether the order of dismissal was approved and issued by the
competent authority? ii) Whether the decision not to hold the enquiry under the
relevant rules are valid or not? and iii) Whether on receiving representations
from the applicants for reinstatement after the criminal case filed against
them had ended in acquittal was properly considered or not?"
It was held that the orders of dismissal were passed by a
competent authority. A finding of fact was also arrived at that there was no
infirmity in the action of the authority for dispensing with the enquiry
leading to the dismissal of the delinquent employees. While upholding the
exceptional jurisdiction exercised by the disciplinary authority, it was
observed that the appellate as also the revisional authority failed to consider
the aspect of acquittal of the accused in the criminal case. It was furthermore
observed that there was no reason as to why the cases of L. Arputharaj and K.
Babu Rajendran should not have been considered at par with the other three
delinquent employees. The Tribunal passed a peculiar order inasmuch as while
declining to interfere with the orders passed by the provisional authority in
the cases of three employees, namely - P. Manoharan, G. Lakshmanan 9 and V .S.
Chandran. the orders of dismissal passed against L. Arputharaj and K. Babu
Rajendran were set aside.
Both the parties preferred writ applications there against. By
reason of a common judgment and order dated 20th June, 2007, the writ
applications filed by Union of India were dismissed and those of the
aforementioned three delinquent employees were allowed.
All the delinquent employees were ordered to be reinstated in
service in their original position, with all service benefits and back wages,
from 31.1.2004, as if they were continuing in their respective positions
without any break.
Two sets of appeals have been preferred before us - one by the
Union of India and the other by Southern Railway Officers Association and
The leaned Additional Solicitor General Mr. Amarendra Sharan,
appearing on behalf of the Union of India, and Mr. K.V. Viswanathan, learned
counsel appearing on behalf of the Association, inter alia contended:- 10 i)
That the High Court committed a serious error in passing the impugned judgment
in so far as it failed to take into consideration that the disciplinary
authority, the appellate authority and the revisional authority assigned
sufficient and cogent reasons for dispensing with the holding of the
judgment of acquittal passed in favour of the delinquent employees by itself
could not be a ground for interfering with the disciplinary proceedings
particularly when the conditions precedent therefor were satisfied.
orders of dismissal, having not been passed on any irrelevant or extraneous
considerations and exceptional situations found to be obtaining at the relevant
time and in view of the fact that the officers who worked as Enquiry Officer
and the disciplinary authority were required to be granted due protection so as
to inspire confidence in them that the workmen would not take law in their own
hands, it was a case where Rule 14 of the said Rules could have been invoked.
Mr. A.K. Ganguli, learned senior counsel appearing on behalf of
the respondents, on the other hand, submitted :-
the matter should be considered on the touchstone of the order of the
disciplinary authority dated 31st January, 2004 and not on the basis of any
subsequent evidence which had been collected by the appellate or the revisional
view of the second proviso appended to clause (2) of Article 311 of the
Constitution of India and Rule 14 of the said Rules, providing for exception to
the general rules that a disciplinary proceeding should ordinarily be held for
the purpose of punishing a delinquent officer, the constitutional protection
granted in favour of the employees must be held to have been fulfilled.
the incident had taken place in a public place in broad day light, there was
absolutely no reason as to why a disciplinary proceeding could not have been
held keeping in view the fact that the passengers travelling in the train and
the other officers 12 of the railway administration could have been examined at
the disciplinary proceeding.
delinquent employees having been acquitted by the criminal court on the self
same charges wherein the complainant Shri S.M. Krishnan examined himself as
PW-1, the impugned judgment does not suffer from any legal infirmity.
reasons recorded by the disciplinary authority are self- contradictory and
there being no material in support of the conclusion that it was not reasonably
practicable to hold a disciplinary proceeding, the finding of fact having been
arrived at by the High Court that it was possible to hold a disciplinary
proceeding, the impugned judgment does not warrant any interference.
of India having given an undertaking before the High Court to comply with the
directions issued by it, has waived its right to prefer the appeals.
Part XIV of the Constitution of India deals with the services
under the Union and the States. Article 309 deals with recruitment and
conditions of service of persons serving the Union or a State. Article 310
deals with tenure of office of persons serving the Union or a State. Article
311 deals with dismissal, removal or reduction in rank of persons employed in
civil capacities under the Union or a State. Clause (1) of Article 311 provides
that an order of dismissal or removal from service shall not be passed by an
authority subordinate to that by which the employee was appointed. Clause (2)
of Article 311 of the Constitution of India and the second proviso appended thereto
reads as under :- "Article 311 - Dismissal, removal or reduction in rank
of persons employed in civil capacities under the Union or a State (1) .....
( 2 ) No
such person as aforesaid shall be dismissed or removed or reduced in rank
except after an inquiry in which he has been informed of the charges against
him and given a reasonable opportunity of being heard in respect of those
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 inquiry and it shall not be necessary to give such person any 14
opportunity of making representation on the penalty proposed:
further that this clause shall not apply-- (a) where a person is dismissed or
removed or reduced in rank on the ground of conduct which has led to his
conviction on a criminal charge; or (b) where the authority empowered to
dismiss or remove a person or to reduce him in rank is satisfied that for some
reason, to be recorded by that authority in writing, it is not reasonably
practicable to hold such inquiry; or (c) where the President or the Governor,
as the case may be, is satisfied that in the interest of the security of the
State, it is not expedient to hold such inquiry."
Indisputably holding of an inquiry, if any misconduct is alleged
on the part of the delinquent official, is obligatory wherein the delinquent
employee is to be informed of the charges against him and given a reasonable
opportunity of being heard in respect thereof. The second proviso appended
thereto, however, makes three exceptions in regard to constitutional
requirement to hold an enquiry. clause (b) whereof provides that in a case
where the disciplinary authority is satisfied that it is not reasonably
practicable to hold such enquiry, subject of course to the condition that
therefor reasons are to be recorded in writing. Recording of reasons, thus,
provides adequate protection and safeguard to the employee concerned.
15 It is
now well settled that reasons so recorded must be cogent and sufficient.
Satisfaction to be arrived at by the disciplinary authority for the
aforementioned purpose cannot be arbitrary. It must be based on objectivity.
The question came up for consideration before a Bench of this
Court in Union of India and another v. Tulsiram Patel [ AIR 1985 SC 1416 ]
wherein this Court opined that the reasonable practicability of holding an
inquiry is a matter of assessment to be made by the disciplinary authority.
concerned authority is generally on the spot and knows what has been happening.
It was observed :- "It is because the disciplinary authority is the best
judge of this that clause (3) of Article 311 makes the decision of the
disciplinary authority on this question final. A disciplinary authority is not
expected to dispense with a disciplinary inquiry lightly or arbitrarily or out
of ulterior motives or merely in order to avoid the holding of an inquiry or
because the Department's case against the government servant is weak and must
fail. The finality given to the decision of the disciplinary authority by
Article 311(3) is not binding upon the court so far as its power of judicial
review is concerned and in such a case the court will strike down the order
dispensing with the inquiry as also the order imposing penalty."
16 It was
furthermore held "133. The second condition necessary for the valid
application of clause (b) of the second proviso is that the disciplinary
authority should record in writing its reason for its satisfaction that it was
not reasonably practicable to hold the inquiry contemplated by Article 311(2).
This is a constitutional obligation and if such reason is not recorded in writing,
the order dispensing with the inquiry and the order of penalty following
thereupon would both be void and unconstitutional.
is obvious that the recording in writing of the reason for dispensing with the
inquiry must precede the order imposing the penalty. The reason for dispensing
with the inquiry need not, therefore, find a place in the final order. It would
be usual to record the reason separately and then consider the question of the
penalty to be imposed and pass the order imposing the penalty. It would,
however, be better to record the reason in the final order in order to avoid
the allegation that the reason was not recorded in writing before passing the
final order but was subsequently fabricated. The reason for dispensing with the
inquiry need not contain detailed particulars, but the reason must not be vague
or just a repetition of the language of clause (b) of the second proviso. For
instance, it would be no compliance with the requirement of clause (b) for the
disciplinary authority simply to state that he was satisfied that it was not
reasonably practicable to hold any inquiry....."
principles have been reiterated in a large number of subsequent decisions. We
may notice some of them.
Satyavir Singh v. Union of India, [ (1985) 4 SCC 252], this Court held :-
"21. The point which was next urged in support of the contention that the
impugned orders were passed mala fide was that even though co-workers may not
have been available as witnesses, there were policemen and police officers
posted inside and outside the building and they were available to give evidence
and that superior officers were also available to give evidence. The crucial
and material evidence against the appellants would be that of their co-workers
for these co-workers were directly concerned in and were eyewitnesses to the
various incidents. Where the disciplinary authority feels that crucial and
material evidence will not be available in an inquiry because the witnesses who
could give such evidence are intimidated and would not come forward and the
only evidence which would be available, namely, in this case, of policemen,
police officers and senior officers, would only be peripheral and cannot relate
to all the charges and that, therefore, leading only such evidence may be
assailed in a Court of law as being a mere farce of an inquiry and a deliberate
attempt to keep back material witnesses, the disciplinary authority would be
justified in coming to the conclusion that an inquiry is not reasonably
practicable. The affidavit filed by the Joint Director, Research and Analysis
Wing, Cabinet Secretariat, Hari Narain Kak, who had passed the impugned orders,
sets out in detail the various acts of intimidation, violence and incitement
committed by each of the appellants. Copies of the written reasons for
dispensing with the inquiry in the case of the appellants have also been
annexed to the said affidavit. It is clear from a perusal of the said affidavit
and its annexures that the police officers, policemen and senior officers could
not have possibly given evidence with respect to all these acts. The said
affidavit further states that the senior officers were also intimidated and
were threatened with dire consequences if they gave evidence.
grievances were made against the senior 18 officers of the RAW in the said
charter of demands submitted by the said Association and the evidence of senior
officers would have been attacked as being biased and partisan. There is thus
no substance in this point also."
Singh v. State of Punjab, [ (1996) 10 SCC 659 ], this Court held :- "7. At
our direction made on 22-4-1996 in this matter, the learned counsel for the
State has produced the original record relating to the appellant's dismissal
along with translated copies of the relevant documents. The first document
placed before us by the learned counsel for the State is the copy of the FIR
No. 219 of 1990 dated 24-11-1990. It is based upon the statement of Head
Constable Hardev Singh, who was posted as gunman with Shri Harjit Singh,
Superintendent of Police (SP) (Operations). The FIR speaks of the jeep (in
which the said SP was travelling along with certain police personnel) being
blown up killing the said SP and few other police officials.
document placed before us is the case diary pertaining to the said crime
containing the statement of the appellant, Kuldip Singh. In his statement,
Kuldip Singh did clearly state about his association with certain named
militants, the plot laid by them to kill Shri Harjit Singh, Superintendent of
Police, Tarn Taran by placing a bomb and the manner in which they carried out
the said plot. He also stated that he and his militant companions planned to
plant a bomb in the office of SSP, Tarn Taran but that the police officers came
to know of the said plan, thus foiling their plan. The learned counsel for the
State of Punjab did concede that except the aforesaid statement of
admission/confession of the appellant, there was no other material on which the
appellant could be held guilty of conduct warranting dismissal from
Court in Union of India v. R. Reddappa, [ (1993) 4 SCC 269 ] held as under :-
"5. More than a decade has gone by since these employees were dismissed
for participating in strike called by the Union recognised by the Railways. But
end has not reached. Barring appellate and revisional authority whose
discretion too was attempted to be curtailed by issuing circular no court or
tribunal has found the orders to be well founded on merits. True the jurisdiction
exercised by the High Court under Article 226 or the tribunal is not as wide as
it is in appeal or revision but once the court is satisfied of injustice or
arbitrariness then the restriction, self-imposed or statutory, stands removed
and no rule or technicality on exercise of power, can stand in way of rendering
justice. We are not impressed by the vehement submission of the learned
Additional Solicitor General that the CAT, Hyderabad exceeded its jurisdiction
in recording the finding that there was no material in support of the finding
that it was not reasonably practicable to hold an enquiry. The jurisdiction to
exercise the power under Rule 14(ii) was dependent on existence of this primary
fact. If there was no material on which any reasonable person could have come
to the conclusion as is envisaged in the rule then the action was vitiated due
to erroneous assumption of jurisdictional fact therefore the Tribunal was well
within its jurisdiction to set aside the orders on this ground. An illegal order
passed by the disciplinary authority does not assume the character of legality
only because it has been affirmed in appeal or revision unless the higher
authority is found to have applied its mind to the basic infirmities in the
order. Mere reiteration or repetition instead of adding strength to the order
renders it weaker and more vulnerable as even the higher authority constituted
under the Act or the rules for proper appraisal shall be deemed to have failed
in discharge of its statutory obligation."
Indian Rly. Construction Co. Ltd. v. Ajay Kumar, [(2003) 4 SCC 579], this Court
held :- "12. It is fairly well settled that the power to dismiss an
employee by dispensing with an enquiry is not to be exercised so as to
circumvent the prescribed rules. The satisfaction as to whether the facts exist
to justify dispensing with enquiry has to be of the disciplinary authority.
Where two views are possible as to whether holding of an enquiry would have
been proper or not, it would not be within the domain of the court to
substitute its view for that of the disciplinary authority as if the court is
sitting as an appellate authority over the disciplinary authority. The
contemporaneous circumstances can be duly taken note of in arriving at a
decision whether to dispense with an enquiry or not. What the High Court was
required to do was to see whether there was any scope for judicial review of
the disciplinary authority's order dispensing with the enquiry. The focus was
required to be on the impracticability or otherwise of holding the
The law laid down by this Court being clear and explicit, the
question which would arise for our consideration is whether in then prevailing
situation, what a reasonable man taking a reasonable view would have done.
The High Court in its judgment opined :- i) That the statement of
the disciplinary authority that "I am convinced that it is not reasonably
practicable to hold an 21 inquiry" is against the dicta laid down by this
Court in Tulsiram Patel (supra).
the absence of any reason, much less recorded, as has been mandated under the
Rule, to show that it was not reasonably practicable to hold a disciplinary
inquiry, we are of the opinion that the discretionary power was exercised for
extraneous purpose to dismiss the delinquents and that the same is arbitrary
and perverse since no reasonable person could form such an opinion on the given
material and thus the impugned orders of dismissal are hit by malice also. The
alleged incident and the impugned orders of dismissal were all dated 31.1.2004
which shows the haste in which the disciplinary authority has acted.
While invoking the stringent extraordinary provisions like Rule 14(ii),
principles of natural justice require every care to be taken by the concerned
authorities. Any haste in invoking such stringent provisions, without even
complying with the mandatory requirements of the provision, would make such
decision of the disciplinary authority illegal, being an abuse of power
conferred upon it.
22 iv) It
can very well be held that the impugned orders of dismissal suffer from want of
materials and in the absence of any material to substantiate the mere oral
stand of the Department that holding an inquiry was not reasonably practicable,
without offering any reasons, much less in writing, as mandated by law, the
impugned orders of dismissal are liable to be quashed.
v) In the
case in hand, since the authorities have invoked the extraordinary power under
Rule 14(ii) dispensing with the inquiry, and further since the alleged incident
was held to be not proved by the criminal court, after thorough trial, the
appellate and revisional authorities ought to have considered the said aspect
of acquittal while imposing the punishment.
we are of the view that the fact of acquittal is a circumstance to be
considered while awarding punishment in this case.
We with respect are unable to agree therewith.
disciplinary authority in its order dated 31st January, 2004 categorically
stated :- i) That the delinquent employees attempted to cause bodily harm to
Shri S.M. Krishnan ; created an ugly scene which brought a bad name to the
railway ; officers who tried to protect Shri S.M. Krishnan were badly abused ;
Shri S.M. Krishnan and his family were threatened to be killed if he goes to
Chennai ; it was a pre-planned attempt as a handwritten poster was displayed in
the workshop as well as at the railway station wherein it was stated that Shri
S.M. Krishnan will die on 31.1.2004 and his cremation will be done at 1430
hours when train No.6128 leaves the railway station.
all of them have conspired and assaulted Shri S.M,. Krishnan as a result
whereof he could not undertake the journey and had to go by road with escort.
formality of holding a disciplinary proceeding was dispensed with stating :- 24
" You along with other associates threatened, intimidated and terrorized
all the officers. The atmosphere of violence, general indiscipline and
insubordination is prevailing. In view of this situation I am convinced that it
is not reasonably practicable to hold an enquiry."
concluded :- " I, therefore, in exercise of the powers conferred upon me
under rule 14(ii) of RS (D&A) Rules, 1968, hereby dismiss you from Railway
Service with effect from 31/1/2004 (A/N). You are required to handover the
railway property in your custody. You are also required to vacate the Railway
quarters, if in occupation, within one month from the date on which a copy of
this notice is delivered. You are hereby advised that under Rule 18 and 19 of
the Railway Servants (D&A) Rules 1968, you may prefer an appeal against
these orders to CWM/GOC provided that :
appeal is preferred within a period of 45 days from the date on which a copy of
this notice is delivered.
appeal is to be preferred in your own name and presented to the authority to
whom the appeal lies and does not contain any disrespectful and improper
An order of a disciplinary authority in a case of this nature, as
laid down by this Court in Tulsiram (supra), must be judged by a Court 25
exercising power of judicial review by placing himself in his arm chair. The
disciplinary authority was a man at the spot. He acted on the basis of a report
made to him. He also knew about the written poster having been displayed. The
atmosphere which was prevailing in the workshop must be known to him. Not only
the disciplinary authority but also the appellate authority, having regard to
the materials brought on record, arrived at the said finding.
Submission of Mr. Ganguli that the appellate authority could not
rely upon any other material may not be entirely correct. In terms of Rules 18
and 19 of the said Rules, the delinquent employees were entitled to prefer an
appeal. The appellate authority was entitled to consider the entire fact
situation. The appeal provides for a post-decisional hearing to the employee
concerned. All defences must have been taken by them. In Ram Chander v. Union
of India and others, [ (1986) 3 SCC 103 ], this Court relying upon Tulsiram
(supra) opined as under :- "In Satyavir Singh v. Union of India there is
an attempt made to analyse the ratio dicidendi of the majority decision in
Tulsiram Patel case and the nature of the remedies left to the civil servant at
pp. 276-81 of the Report. If that be so, in a case governed by one of the
clauses of the second proviso to Article 311(2) or an analogous service 26 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 clause (2) of Article 311 would have these
remedies left to him. Virtually this is tantamount to a post-decisional
appellate order, in our opinion, satisfies the dicta laid down in Ram Chander
While, thus, considering as to whether there had been enough
material before the disciplinary authority for the purpose of arriving at its
satisfaction that it was not reasonably practicable to hold departmental
proceedings, the appellate authority, in our opinion, was entitled to consider
the situation prevailing from the confidential reports submitted by other
employees. They were not relied upon for the purpose of proving misconduct but
for the purpose that in the situation, which was prevailing, whether it was
reasonably practicable to hold an enquiry. There is no dispute that the
protection accorded to an employee by reason of the constitutional provision of
mandate of recording of reasons is of great significance. Such reasons, in our
opinion, in the instant case, have been recorded.
The High Court, in our opinion, was also not correct in opining
that an immediate action, which was taken, was done in haste. It was, in fact,
a case where an immediate action was absolutely essential.
This Court in Ajit Kumar Nag v. General Manager (P.J.), Indian Oil
Corporation Ltd., Haldia and Ors [ (2005) 7 SCC 764 ] noticed the dicta laid
down in Tulsiram Patel (supra), which reads as under :- "not taking prompt
action may also be construed by the trouble-makers as a sign of weakness on the
part of the authorities and thus encourage them to step up their activities or
agitation. Where such prompt action is taken in order to prevent this
happening, there is an element of deterrence in it but this is an unavoidable
and necessary concomitance of such an action resulting from a situation which
is not of the creation of the authorities."
So far as the finding of the High Court that the orders of
dismissal suffer from want of material, is concerned, the orders of the
disciplinary authority themselves disclose existence of sufficient materials.
Before the statutory authorities, the incident was not denied. Lodging of the
first report was also not denied. The fact that one of the delinquent officials
was arrested on the same day was not denied. Arrest of others after a period of
two weeks also stood admitted. Display of handwritten poster both at the 28
workshop and at the railway station had also not been denied. We do not find
that before the High Court the delinquent employees brought on record any
material that the grounds stated in the orders of dismissal were wholly
non-existent. No mala fide on the part of the disciplinary authority was
It is not the case of the delinquent employees that the
disciplinary authority in passing the said order took into consideration any
irrelevant fact not germane therefor or failed to take into consideration any
Acquittal in a criminal case by itself cannot be a ground for
interfering with an order of punishment imposed by the disciplinary authority.
The High Court did not say that the said fact had not been taken into
consideration. The revisional authority did so. It is now a well settled
principle of law that the order of dismissal can be passed even if the
delinquent official had been acquitted of the criminal charge.
Sahadeo Singh v. Union of India, [(2003) 9 SCC 75], this Court held:- 29
"7. Learned counsel for the appellants, as stated above, strongly relied
upon the judgment of this Court in the case of Singasan Rabi Das. A perusal of
this case shows that the observations of this Court in the said case do not
apply to the facts of the present case.
case, the Railways gave an excuse that it is not feasible or desirable to
procure the witnesses because they were likely to suffer personal humiliation
and may become the targets of acts of violence. This opinion expressed in the
said case was held to be not justified as could be seen from the said judgment
because of lack of material produced by the Railways, hence, this Court
proceeded on the basis that on facts of that case, the Railways were only
trying to protect the witnesses and in fact there was no reasonable
apprehension that the witnesses will not appear before the inquiry officer.
That is not the case in these appeals, as noticed by us hereinabove. The three
preliminary enquiries made on the spot, clearly established the fact that
though people have witnessed the theft of rice bags in which incident these
appellants are involved, they are not willing to come forward because they
apprehend danger to their lives.
apprehension of danger to life in this appeal is not that of the inquiry
officer but is that of the witnesses themselves. Therefore, we do not think the
appellants can take advantage of the observations of this Court in the case of
Singasan Rabi Das."
This Court upon perusal of the entire record satisfied itself that
the same was sufficient to dispense with the enquiry.
We may also notice a decision of this Court in Prithipal Singh v. State
of Punjab, [ (2006) 13 SCC 314 ] wherein the delinquent official was exonerated
of the charges and the departmental proceedings were dropped, but despite the
same the department, taking recourse to clause (b) of the 30 second proviso
appended to clause (2) of Article 311 of the Constitution of India, dismissed
the delinquent employee. It was in the aforementioned situation, this Court
opined :- "6. It is not in dispute that pursuant thereto or in furtherance
of the said order dated 18-10-1988, the appellant was reinstated in service.
Thereafter the departmental proceedings were held and therein the charges,
having not been proved, were dropped. Once in the disciplinary proceedings the
appellant was exonerated of the charges framed against him, the question of
taking recourse to Clause (b) of the second proviso appended to Clause (2) of
Article 311 of the Constitution of India did not and could not arise. It is
unfortunate that although, the same had been duly noticed by the learned trial
Judge, it failed to receive due attention of the appellate court as also of the
High Court. The very purpose, for which the said provision was enacted, had
lost its relevance once a departmental proceeding was held. The Director
General of Police, while passing the order dated 5- 2-1990, furthermore failed
to take into consideration that in an appeal preferred by the delinquent from
such an order it was obligatory on the part of the disciplinary authority to
produce all records to show that there were enough materials before the
disciplinary authority to arrive at a positive and categorical finding that in
the departmental proceeding the witnesses were not likely to depose. It was not
done. Resultantly, the entire proceeding became vitiated in law." ( See
also Tarsem Singh v. State of Punjab, [ (2006) 13 SCC 581 ].
Regarding submission of the learned senior counsel for the
respondents that the Union of India had waived its right to maintain special
leave petition by undertaking to comply with the order of the High Court, 31
reliance has been placed on Thacker Hariram Motiram v. Balkrishan Chatrabhu
Thacker, [1989 Supp (2) SCC 655]. That case related to a rent control matter.
It refused to exercise its discretionary jurisdiction under Article 136 of the
Constitution of India stating :- "It appears that the undertaking was
affirmed on November 9, 1984 wherein it was stated that the appellant would
vacate and give vacant possession of the suit premises by 31-12-1985 i.e., to
say after one year if "by that time no stay order from the Supreme Court
is received as I intend to file an appeal in the Supreme Court". This
undertaking filed by the appellant in our opinion is in clear variation with
the oral undertaking given to the learned Judge which induced him to give one
year's time. We do not wish to encourage this kind of practice for obtaining
time from the court on one plea of filing the undertaking and taking the
different stand, in applications under Article 136 of the Constitution. In that
view of the matter the interim order is vacated and we direct that the
appellant should hand over possession to the respondents forthwith."
The said judgment is not an authority for the proposition that a
right of appeal can be waived only because an undertaking had been given to
comply with the order.
other hand in P.R. Deshpande v. Maruti Balaram Haibatti, [ (1998) 6 SCC 507 ],
a three Judge Bench of this Court held :- "11. A party to a lis can be
asked to give an undertaking to the court if he requires stay of 32 operation
of the judgment. It is done on the supposition that the order would remain
unchanged. By directing the party to give such an undertaking, no court can
scuttle or foreclose a statutory remedy of appeal or revision, much less a
constitutional remedy. If the order is reversed or modified by the superior
court or even the same court on a review, the undertaking given by the party
will automatically cease to operate. Merely because a party has complied with
the directions to give an undertaking as a condition for obtaining stay, he
cannot be presumed to communicate to the other party that he is thereby giving
up his statutory remedies to challenge the order. No doubt he is bound to
comply with his undertaking so long as the order remains alive and operative.
However, it is open to such superior court to consider whether the operation of
the order or judgment challenged before it need be stayed or suspended having
regard to the fact that the party concerned has given undertaking in the lower
court to abide by the decree or order within the time fixed by that
For the reasons aforementioned the impugned judgment cannot be
sustained. The same as well as the judgment of the Tribunal are set aside
accordingly. The appeals are allowed. No costs.
.................................J. ( S.B. Sinha )