Rajasthan High Court - Jaipur
Union Of India (Uoi) And Ors. vs Shiv Baboo Singh on 22 February, 1993
Equivalent citations: (1994)IILLJ434RAJ, 1993(2)WLC198
JUDGMENT K.C. Agrawal, C.J.
1. Shiv Baboo Singh - the respondent - was initially appointed as a Clerk in the Food and Civil Supplies Department, State of UP. On retrenchment in the year 1954 he was absorbed in the Railway Department and was appointed as Clerk in the Mechanical Department on March 17, 1955. He was later promoted as SeniorCIerk. Under the instructions of the Government of India, all the employees who were retrenched from service in the Department of Food and Civil Supplies, State of UP. and later absorbed in the Railways were given advantage of their service to their credit in their earlier Department and the fixation of pay and increment, D.A. etc. was to be made accordingly, after taking into consideration the service rendered by the employees before being absorbed in the Railways.
2. The case of the respondent since about fixation was pending, he met Sh. P.R. Seshan, Divisional Personnel Officer, Kota to expedite and finalise his case. The respondent, thereafter, complained to the Chief Personnel Officer, Church Gate, Bombay on October 4, 1972 that Sh. Seshan had demanded Rs. 500/- from him for finalisation and fixation of salary. This complaint of the respondent was taken seriously by the Railway Authorities. Sh. OP. Khanna, Vigilance Inspector, was required to make a preliminary enquiry for finding the truth. He recorded the statement of the respondent and submitted preliminary enquiry report to the Divisional Mechanical Engineer. On the basis of the preliminary enquiry report, the Divisional Mechanical Engineer proposed to hold enquiry against the respondent under Rule 9 of the Railway Servants (Discipline and Conduct) Rules, 1968. The respondent was served with a memorandum alongwith the charges. He was asked to give his written statement of his defence. He was also asked to intimate to the Enquiry Officer the name of a railway servant whom he wanted to act as his counsel.
3. Shri B.L. Chaturvedi, A.M.E., was appointed as Enquiry Officer. The respondent wanted Sh. G.L. Ajwani, an employee of the Railway, to be appointed as his counsel. The Enquiry Officer informed the respondent that the Rules governing the enquiry proceedings against the respondent did not permit Sh. G.J. Ajwani to be appointed as his counsel. The reason being that Sh. G.J. Ajwani was a counsel in nine other enquiries and the Rules of the Railway provided that no one could become a counsel for an employee of the Railway in more than two enquiries.
4. The respondent made a complaint against Sh. B.L. Chaturvedi pointing out that he did not expect justice from him. His representation, however, against Sh. B.L. Chaturvedi was rejected. The Enquiry Officer proceeded to record the statement of the respondent and turning down his request for postponement. He, thereafter, recorded the statement of three witnesses-Khyali Ram, M.L. Jain and Shambhu Dayal. Ultimately, a show cause notice was given to the respondent intimating him as to why the penalty of removal should not be imposed upon him for levelling false charge of demanding money from the respondent for finalisation of the papers mentioned above. He submitted his reply to the show cause notice, but the objections did not find favour with the Senior Divisional Mechanical Engineer and the penalty of removal from service was imposed on the respondent on March 17, 1975. On April 20, 1975, the Senior Divisional Mechanical Engineer cancelled the notice of imposition of penalty and called upon the respondent to submit his defence afresh to the show cause notice. The defence was submitted by the respondent. He was again found guilty of the charge and penalty of removal from service was imposed. The respondent preferred an appeal before the Divisional Superintendent, that failed. He, thereafter, filed a revision petition before the General Manager, Western Railway, Church Gate, Bombay which was dismissed on January 11, 1978. Aggrieved, the respondent filed Writ Petition No. 985/78 which was allowed by a learned Single Judge and the punishment of removal from service was quashed. Against the said judgment, the Railways have filed this special appeal.
5. Two contentions have been accepted by the learned Single Judge. The first was that the respondent was not given due opportunity to defend himself by refusing his nomination of Sh. G.J. Ajwani as his defence counsel. In the absence of a counsel, he could not put forward the points in defence of the charge levelled against him. The second was that the penalty of removal was disproportionate to the wrong which the respondent was alleged to be guilty of. In support of the latter contention, the respondent relied upon the following decisions reported in:
1. Jaswant Singh v. Pepsu Roadways Trans-port Corpn. (1984-I-LLJ- 33)
2. Rama Kant Misra v. Stateof U.P. (1982-II- LLJ-472)
3. Sukhdev Singh v. State of Punjab (1983 (2) SLR 159)
4. Bhagwat Ram v. State of U.P. (AIR 1983 SC 454) We have heard learned counsel for the parties and are of the opinion that both the grounds taken by the learned Single Judge for quashing the removal from service were untenable. The charge against the respondent was that he was guilty of misconduct which was covered by Clause (iii) of Rule 3 of the Railway Services (Conduct) Rules, 1966. The relevant Clause (iii) reads as under:
(iii) do nothing which is unbecoming of a railway or Government servant."
6. Counsel's argument before the learned Single Judge which was reiterated before us was that making a complaint to the higher officer of demanding bribery was not a misconduct even though it was false and concocted. On that basis, counsel urged that it was an abuse of discretion to remove the respondent. The submission is not tenable.
7. On the reading of all the departmental proceedings and the entire papers, we find that the charge levelled by the respondent against his senior was deliberate, contumacious and unwarranted disregard of authority. He engaged in such behaviour and wilful failure to comply with the basic discipline which was required of him. The learned Single Judge treated the charge levelled against the respondent as minor and did not attach importance to it which circumstances of the case deserved. The respondent had deliberately and falsely alleged that his senior had demanded Rs. 500/- for finalisation of papers. That was a finding given by the Enquiry Officer, Appellate Authority and the Revising Authority in the departmental proceedings.
8. Under Article 226 of the Constitution, neither the learned Single Judge sat on appeal for scrutinising the evidence and recording his finding nor actually he did so. He did not come to the conclusion that Divisional Personnel Officer had demanded money from the respondent for finalisation of papers. The learned Single Judge held that the respondent was not guilty of misconduct. Misconduct was a charge of wide import. A Government servant or any one could be said to be guilty of misconduct if he committed intentional wrong doing or deliberate violation of standard of behaviour by a Government official. The respondent acted most recklessly in asserting that Sh. Seshan had demanded money for finalisation of papers. It was highly improper behaviour and the departmental authorities correctly found the respondent to be guilty of the charge of the Railway Services (Conduct) Rules, 1966. The learned counsel for the respondent urged that Clause (i) and (ii) of Rule 3 of the said Rules did not apply to the present case. The respondent was not guilty of Clause (i) and (ii), but he was definitely guilty of Clause (iii) of Rule 3 of the said Rules which has been quoted above. A person would be considered to be guilty of Clause (iii) if his behaviour was unbecoming of the status and position which he occupied. Any conduct which is unsuitable, indecorous, improper is unbecoming of the office which he holds. If discipline is necessary for maintaining the prestige and respect of a Government office, it is necessary that a subordinate should not be permitted to level false charge against his superior. If such a thing is permitted, the result would be that the working of a Government office would become chaotic.
9. Consequently, we do not agree with the finding of the learned Single Judge that the respondent was not guilty of misconduct.
10. We further find that the learned Single Judge did not have jurisdiction under Article 226 of the Constitution to hold that the penalty imposed on respondent was disproportionate to the charge. Article 226 confers supervisory jurisdiction and not the appellate. It was for the departmental authority to judge from the papers and evidence brought before it as to what punishment was imposable on the facts and circumstances of a particular case. If, of course, in exercising discretion of imposition of punishment, the authority takes into account some extraneous matters, that order would certainly be erroneous. The discretionary power cannot be exercised for an unauthorised purpose. But, in the instant case, the learned Single Judge has not given any such finding. The Courts have to act within the limitations imposed by the laws of discretion. The learned Single Judge exceeded in the exercise of jurisdiction in holding the punishment to be disproportionate.
11. An argument was made before the learned Single Judge that Sh. Ajwani was not appeared as a counsel which has resulted in denial of the opportunity to defend. The respondent himself admitted that Sh. Ajwani was refused permission to appear as he had already been appearing in nine other cases. Under the rules, the respondent's request for his appearance was unjustified as he could do so only in two cases. The respondent was given opportunity several times to nominate another counsel, but he did not do so. Since he did not avail the opportunity of defending, he could not make the grievance and challenge the findings given against him on that ground. Moreover, the respondent also went up in appeal and, thereafter, filed revision petition which was dismissed on January 11, 1978.
12. It is settled that natural justice has no rigid or fixed procedure. Each case has to be judged on its own facts. In this case, time and again the respondent was asked to nominate his counsel which he did not do so. Consequently, the submission made by the respondent before us that the finding was vitiated on that ground is not acceptable.
13. As the misconduct was a serious charge for which punishment prescribed is removal, it is not open to the Court that instead of removal some other punishment should have been awarded. The rulings referred to above and relied upon by the learned counsel for the respondent have no application. Each of them was decided on its own facts.
14. Another fact we wish to note is that in support of the stay application, the respondent filed an affidavit alongwith certificate of Board of High School and Intermediate Education, United Provinces from Allahabad stating his date of birth was January 9, 1928 and as such, he was entitled to have an order staying the operation of the order of the learned Single Judge in his favour. The case of the appellants was that the date of birth of the respondent was January 9, 1926 and not January 9, 1928. The High Court dealing with the stay application asked the Addl. District Judge, Gangapur City to submit a finding as to whether the correct date of birth of Baboo Singh was January 9, 1928 or January 9, 1926. The Addl. District Judge took evidence of both the parties and held that the respondent had procured a false and wrong certificate to support his case and his date of birth was January 9, 1926. However, the stay order had been vacated earlier on November 25, 1985.
15. Counsel for the appellants requested us to direct for the prosecution of the respondent on the ground that he filed a false affidavit as well as a manufactured certificate. Seeing the age of the respondent, we decline to direct for his prosecution. These facts are acquainting ourselves to the extent to which the respondent could go.
16. For the reasons given above, the appeal succeeds and is allowed. The order of the learned Single Judge dated March 3, 1984 is set aside and the writ petition is dismissed with costs which is fixed at Rs. 500.