Patna High Court
Gangadhar Pandey vs The Union Of India (Uoi) on 30 August, 1963
Equivalent citations: AIR1964PAT102, AIR 1964 PATNA 102, 1964 BLJR 523 ILR 44 PAT 532, ILR 44 PAT 532
JUDGMENT Choudhary, J.
1. This is an appeal by the plaintiff whose suit, for declaration that his removal from service was wrongful, illegal, ultra vires and without jurisdiction and that he still continued to be in service, and for recovery of his salary from the date of dismissal, has been dismissed by the learned Additional Subordinate Judge, Chapra. The plaintiff was appointed as Assistant Station Master in July, 1949 and posted at Tirki Railway station in the district of Gonda. At the time when the incident which resulted in his removal happened, he was posted as Assistant Station Master at Barauni Junction railway station on the North Eastern Railway. At the relevant period, he was the Branch Secretary of the North Eastern Railway Mazdoor Union, Samastipur Branch, a legal body having a legal existence under the Trade Unions Act of 1926 and duly recognised by the railway management. It is alleged that on the 9th of June, 1956, the plaintiff forced entry in the office room of the District Mechanical Engineer, Sonepore, without his permission and, on objection being raised by the District Mechanical Engineer, and his refusal to discuss any matter with him, the plaintiff became impertinent and insulted and abused him by calling him 'rouge' and 'scoundrel'.
It appears that on the 25th of July, 1956, a charge-sheet of serious misconduct was drawn up against the plaintiff stating the incident referred to above and he was called upon to show cause by written explanation within seven days from the date of the receipt of the same. The charge-sheet was received by the plaintiff on the 28th of July, 1956, and on the 2nd of August, 1956, he sent his reply with regard to the charge-sheet challenging the drawing up of the same against him as Assistant Station Master of Barauni Junction railway station and stating that, if the administration had got any complaint against the branch Secretary of the North Eastern Railway Mazdoor Union, Samastipur Branch, the matter may be reported to the General Secretary of the North Eastern Railway Mazdoor Union. This latter (sic) is marked Ext. G/I in the case. On the 7th of August, 1956, the District Traffic Superintendent of the North Eastern Railway, Sonepore, wrote a letter (Ext. G) to the plaintiff that, as he had not submitted his defence to the charge referred to above, it was presumed that he had no explanation to offer, and intimating that the departmental confronted enquiry by District Officers in connection with the above charge, would be held at Muzaffarpur in the office of the Regional Superintendent on the 16th August, 1956 and the 17th of August 1956.
He was also informed that in order to allow him all reasonable facilities to defend himself in the enquiry, he might elect bis defence Counsel. On the 10th of August, 1956, the plaintiff, by a letter Ext. G/4, nominated Sri Prabhat Biswas, Vice-President of the North Eastern Railway Mazdoor Union, as his defence Counsel and prayed for time till after the 18th August, 1956, as the said nominated Counsel was out of station. Time was, however, not granted and the enquiry was to be held on the 16th of August, 1956. On that date, the plaintiff again prayed for adjournment on account of the absence of his Counsel. Tbe enquiry was, therefore, postponed to the 22nd and 23rd of August, 1956, in order to enable the plaintiff to arrange the attendance of his Counsel. The next sitting of the enquiry committee was, therefore, held at Muzaffarpur on tbe 22nd of August, 1956, and the plaintiff appeared with his Counsel Sri Biswas.
On that date, the plaintiff's Counsel wanted the enquiry committee to clarify whether the plaintiff was being prosecuted in his capacity as Assistant Station Master and as an employee of the railway administration or as an 'Union' official. The committee explained to him that, so far as the District Traffic Superintendent of Sonepore was concerned, the position appeared to be quite clear from the charge-sheet itself wherein the plaintiff was designated as Assistant Station. Master, The defence raised by his Counsel was that it was irregular to proceed with the enquiry on the assumption that the plaintiff was being prosecuted as an Assistant Station Master; that complaint should have been brought against the Secretary of the North Eastern Railway Mazdoor Union, Samastipur Branch and the view that the plaintiff was involved as an Assistant Station Master militated against his functions as an Union Official, and that he had no objection to participate in the proceedings in case the status of the plaintiff as an office-bearer of the Union vis-a-vis the charge-sheet was accepted and the enquiry committee agreed to proceed on that basis.
The committee, for certain reasons, however, was not in a position to have piecemeal enquiry and asked the plaintiff and his Counsel to co-operate with them in finding out whether the plaintiff had committed the acts complained against him. The plaintiff and his Counsel, however, made it clear to the enquiry committee that they would not associate themselves with the committee's proceedings if the enquiry was to be held on the basis of the plaintiff being treated as a railway servant and they walked out and did not take part in the proceedings. The committee, therefore, had to proceed ex parte and ultimately it came to a finding that the plaintiff, a railway servant, by becoming a member of any association or Union, did not cease to be a railway employee and that from the evidence on record the charges levelled against him were established and he had committed acts of serious misconduct which were subversive of discipline. The District Traffic Superintendent, agreeing with the findings of the enquiry committee, came to the conclusion that the charges had been conclusively proved and proposed to remove the plaintiff from service and to give him an opportunity to submit further explanation, which was to foe taken into consideration before passing final orders.
2. In view of the findings referred to above, a notice of the proposed punishment was given to the plaintiff requiring him to show cause as to why the proposed punishment of removal from service should not be inflicted on him, and it was pointed out in that notice that any representation that he would make in this connection would be taken into consideration before passing the final order. This notice was duly received by the plaintiff, as appears from Ext. 3/a, and he filed his show clause petition (Ext. H). In that show-cause petition, besides urging the point of the illegality of the proceedings against him as an Assistant Station Master while he, according to him, had gone to the District Mechanical Engineer in his capacity as the Branch Secretary of the North Eastern Railway Mazdoor Union, he claimed to be given an opportunity to cross-examine the witnesses examined by the enquiry committee and to adduce evidence in support of his defence. He also made a reference to the discrepancies in the evidence of the witnesses examined by that committee and pressed for production of the original interview Register.
The District Traffic Superintendent, after considering the show cause petition came to the conclusion that the plaintiff was given all reasonable facilities for his defence by the enquiry committee and he could not, therefore, consider it desirable to re-open the case afresh. He, therefore, passed an order removing the plaintiff from service with immediate effect. The plaintiff, thereafter, preferred an appeal against the order of his removal before the Regional Superintendent who allowed the prayer of the plaintiff for the production of the original interview Register and for the examination of Shri B. C. Bagchi, Chief Clerk. The original Interview Register was, accordingly, produced and Shri B. C. Bagchi, Chief Clerk was duly examined and cross-examined on behalf of the plaintiff. The Regional Superintendent, however, could not find any valid reason to recall the witnesses who were examined by the enquiry committee over again and reopen the enquiry, inasmuch as, according to him, sufficient opportunity was given to the plaintiff to substantiate his defence. On a consideration of the contradictions in the evidence of the witnesses, the original Interview Register and the evidence of Sri B. C. Bagchi and other materials on the record, the appellate authority affirmed the order of the District Traffic Superintendent removing the plaintiff from service.
3. The plaintiff, therefore, after giving notice to the prescribed authorities under Section 80 of the Code of Civil Procedure, instituted the suit for the reliefs stated above, which has been dismissed by the learned Additional Subordinate Judge.
4. The defence taken by the defendant is that the order of removal was passed by a competent authority, that the plaintiff was given reasonable opportunity to raise his defence and that the plaintiff had not lost his status as an Assistant Station-Master for the purpose of disciplinary action, even though he was the Branch Secretary of the Mazdoor Union.
5. The case of the plaintiff is that his removal was wrongful, ultra vires and without jurisdiction and he rested, for the support of his case on three-grounds, namely, (i) that the District Traffic Superintendent had no authority to remove him, (ii) that there has been a violation of his constitutional rights in not having been given to him an opportunity, after the issue of the second notice, to cross-examine the witnesses examined by the enquiry committee and to adduce evidence in his defence; and (iii) that the enquiry held by the enquiry committee was absolutely without jurisdiction in view of the fact that he had approached the District Mechanical Engineer in his capacity as the Branch Secretary of the Union and not in his capacity as an Assistant Station Master. All these points were raised before the learned Additional Subordinate Judge also, who, in a well written judgment, after discussing the evidence and the law on the subject, decided against the plaintiff on all these points. Before him, a further point was raised with regard to the validity of the verification of the written statement filed by the defendant-respondent which was also decided against him, and that point has not been pressed before us in this appeal. The only points that have been pressed before us are the three points enumerated above.
6. So far as the first point is concerned, the argument advanced on behalf of the plaintiff by his learned Counsel is that he was appointed as an Assistant Station Master by the Traffic Manager, and the District Traffic Superintendent, being subordinate to him, could not remove him. In the plaint, however, it was not specifically alleged that the District Traffic Superintendent, being subordinate to the Traffic Manager, could not pass an order of removal against him as he had been appointed by the Traffic Manager. Counsel for the respondent has raised an objection that the point, not having been raised in the plaint, could not be pressed for consideration by the Court. He has relied on various decisions which lay down that, if a point has not been raised in pleadings, the parties are not entitled to agitate the panic at the hearing. It is, however, not necessary to refer to these cases, inasmuch as it is apparent that the defendant itself, in paragraph 22 of the written statement, stated that the removal of the plaintiff from service was ordered by the competent authority, that is, the District Traffic Superintendent, who was his appointing authority. There was an issue raised on this point, being Issue No. 4, which is to the following effect: -
"Was the removal of the plaintiff from service ordered by the competent authority after careful consideration and observation of due formalities ?'' In this case, the parties did not adduce any oral evidence and relied, for their respective contentions, on certain documents only. It has, therefore, to be seen as to who actually appointed the plaintiff as an Assistant Station Master and whether the authority removing the plaintiff was subordinate to his appointing authority.
7. Counsel for the plaintiff-appellant has relied on Ext. D/3, which is a letter of posting from the Traffic Manager to the District Traffic Superintendent, Oudh Tirhut Railway (now North Eastern Railway). The relevant portion of this letter reads as follows: -
"The following selected candidates for A. S. M. after completion of their training in the school are directed to report to you for temporary appointment as A. S. M. on Rs. 64/- p.m. in scale 64-170 plus usual allowances in connection with the implementation of the Adjudicator's Award. They may be provided with quarters if available.
These men should be posted to the stations mentioned in the D. P. O. (ADJ) letter No. ADJN/E/ 4-8 dated 4-7-49 copy endorsed to you."
Below that, the names of the persons who had to be posted at different stations in the different railway districts have been mentioned. The whole of the document has not been printed in the paper book. But from a perusal of the original document, it appears that in the Gonda, district the names of six candidates were proposed, including the plaintiff, while in the Sonepore district the names of four candidates were proposed. It further appears from the original letter that copies of this letter were forwarded to different officers of the railway, but not to the plaintiff or any of the other persons whose names were mentioned in that letter. This letter is dated the 5th July, 1949. From a letter (Ext. G/12), dated the 6th July, 1949, it appears that 16 persons, including the plaintiff, came to report to the District Traffic Superintendent, Gonda, and prayed for being allowed preparatory leave of six days before joining their posts. Ex. D/z is a letter, which is described as "Appointment Order", and the relevant portion of the same reads as follows : -
"26. Shri Ganga Dhar Pandey Trainee A. S. M. appointed as Ty. A. S. M. and posted at T. R, E. as 2nd A. S. M. * * * The trainee A. S. Ms. are appointed as Ty. A. S. M. on Rs. 64/r p.m. in scale Rs. 64-170 plus-usual Dearness Allowance. They may be provided with quarters if available otherwise they will make their own arrangements for accommodation. They are allowed 6 days' preparatory leave.
Sd/- R. B. Sinha.
No. EM/145/49 Gonda, dated 7th July, 1949, Copy forwarded to Shri Ganga Dhar Pandey, Ty. A. S. M. M. (Sic) office C/o SM- for information. He will please advise this office what passes he requires to carry out the transfer."
This letter is signed by the District Traffic Superintendent, Gonda. A copy of the same was forwarded to the plaintiff on which he made an endorsement of having received the same on the 7th July, 1949. That portion of the document has not been printed in the paper book. On the same day, another letter was issued by the District Traffic Superintendent to the plaintiff stating "On expiry of your preparatory leave please report to S. M, Tirki for duty. Pass enclosed. Copy to S. M. Tirki for information. This man has been posted to yours as and A. S. M, Advise when he joins."
8. The contention of Mr, Ghosh for the appellant is that the Traffic Manager, Gorakhpur, by his letter (Ext. D/3), dated the 5th July, 1949, virtually appointed the plaintiff as an Assistant Station Master, and the expression that he was directed to report to the District Traffic Supdt. for temporary appointment meant only a direction to report to the District Traffic Superintendent for getting a formal letter of appointment from him. It is urged that the Traffic Manager had not left any discretion with the District Traffic Superintendent either in the matter of pay or in the matter of posting. On behalf of the defendant, Mr. Bose, however, has submitted that the pay is fixed under the letter (Ext. D/3) which is according to the scale already fixed and it only shows the status of the plaintiff so far as the pay is concerned in the employment of the railway.
His argument with respect to this letter is that the plaintiff as well as some other persons who were put under training in the school for being selected as candidates for the post of Assistant Station Masters having completed their training were directed to go to the District Traffic Superintendent for getting appointment from him. He further submitted that the plaintiff, having reported to the District Traffic Superintendent, was actually appointed by the District Traffic Superintendent by his order (Ext. D/2) dated the 7th July, 1949. In my opinion, the contention raised on behalf of the respondent is sound and must prevail. As already stated, a copy of the letter (Ext. D/3) was never forwarded to the plaintiff, as is usually done if a letter of appointment is issued. On the other hand, (Ext. D/2) is headed as "Appointment Order" and a copy of the same was forwarded to the plaintiff for information. This letter expressly states that the trainee Assistant Station Masters are appointed as temporary Assistant Station Masters on Rs. 64/-per month in the scale of Rs. 64-170.
By this order they were all allowed six days' preparatory leave. Thus, on a consideration of the two documents, Exts. D/2 and D/3, I am of the view that the plaintiff was appointed as an Assistant Station Master by the District Traffic Superintendent, and not by the Traffic Manager. Such a construction gains support from a Bench decision of this Court in Kamta Charan Srtvastava v. Post-Master General, (S) AIR 1955 Pat 381, the facts whereof are almost similar to the instant case. In that case, the Post Master General brought the name of the petitioner of that case on the list of approved candidates for appointment as clerks in Tirhut Division; but the Post Master General himself said that the appointment letter would issue from the office of the Superintendent of Post Offices, Tirhut Division. "The Superintendent of Post Offices, Tirhut Division" actually appointed the petitioner and issued the appointment letter. It was held that the appointing authority of that petitioner was the Superintendent of Post Offices, 'Tirhut Division, and not the Post-master General.
9. Mr. Ghosh has, however, placed reliance on a Bench decision of the Rajasthan High Court in Sobhagmal v. State, AIR 1954 Raj 207. In that case, the applicant succeeded in a competition examination for the Civil and Subordinate Service of the State of Jaipur, as it was before the Constitution, and was appointed by order of the Government of Jaipur, dated the 16th October, 1946. He was ordered to be engaged for Patta work for one year and if during this period his work was found satisfactory, he was to be considered for appointment as Probationary Naib Tahsildar or Probationary Inspector in the Customs and Excise Department. Subsequently, on the 6th February, 1948, a report was made by the Revenue Department that the applicant might be recommended to the Customs Department for appointment as Inspector and this report was approved by the Prime Minister on the 15th February, 1948. He was ordered to report himself to the Commissioner, Customs and Excise, who was asked to post him. On the 4th March, 1948, he was informed by the Revenue Secretary that he had been appointed Inspector under the Customs and Excise Department on probation for one year and was directed to report himself to the Commissioner Customs and Excise.
On the 6th March, 1948, the Commissioner, Customs and Excise posted the applicant to the distillery for excise training. There was no order of the Commissioner, Customs and Excise appointing him before the 4th March, 1948, on which date he was informed by the Revenue Secretary that he had been appointed an Inspector in the Customs and Excise Department. It was held that the order of the Commissioner dated the 6th March, 1948, could only be treated as the order of posting as the applicant had already been informed on the 4th March, of his appointment and that he was appointed by the Government of the former State of Jaipur, anil not by the Commissioner, Customs and Excise of that State. The 'facts of that case are, therefore, different from those of the instant case. In that case, the applicant had already been informed by the Revenue Secretary that he had been appointed as Inspector. The Commissioner, Customs and Excise, therefore, could not be said to be the appointing authority of the applicant. In the present case, however, the District Traffic Superintendent has actually made the appointment, as appears from the Appointment Order (Ext. D/2). This case has therefore, no application to the facts of the present case.
10. The view that the plaintiff was appointed by the Dist. Traffic Superintendent by his Appointment order (Ext. D/2) gains support from the own averment of the plaintiff in his plaint. In paragraph I of the plaint, it has been stated that the plaintiff was appointed as Assistant Station Master on the 7th July, 1949, by the management of the North Eastern Railway administration. He has not stated that he was appointed by the Traffic Manager by the letter (Ext. D/3), and that letter could not possibly be the letter of appointment as it is dated the 5th July, 1949 two days before the 7th July, 1949, on which date the plaintiff himself claims to have been appointed. Mr. Ghosh has, however, argued that the statement that the plaintiff was appointed on the 7th July, 1949, does not mean that the appointment letter was issued on that date. He may have been appointed by the letter (Ext. D/3), dated the 5th July, 1949, bat his date of appointment must be taken to be the date on which he reported to the District Traffic Superintendent for being posted.
The letter showing the plaintiff having reported to the District Traffic Superintendent is (Ext. G/12), which is dated the 6th July, 1949 Therefore, this also cannot fit in with his appointment being on the 7th July, 1949. He has then contended that the 7th July, 1949, may be the date on which the plaintiff joined the post. There is, however, no evidence on the record to show as to on what date he joined the post. All that appears as to what happened on the 7th July, 1949, is the issue of the letter (Ext. D/2) by the District Traffic Superintendent actually appointing the plaintiff to the post. Thus, on the own averment of the plaintiff, the District Traffic Superintendent must be held to be the appointing authority of the plaintiff. The Dist. Traffic Superintendent, therefore, was the competent authority to dismiss the plaintiff and the order of dismissal passed by him can in no way be said to be illegal, ultra vires and without jurisdiction. The finding of the learned Addl. Subordinate Judge on this point has, therefore, to be affirmed. The contention of the plaintiff-appellant in this regard, accordingly, fails.
11. The second contention raises a question of construction of Article 311 (2) of the Constitution of India, which is similar to the provision of Section 240 (3) of the Government of India Act, 1935. Article 311 (1) states that no person who is a member of a civil service of the Union or an all-India service or a Civil Service of a state or holds a Civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed. Article 311 (2) lays down no such person as aforesaid shall be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. There are certain provisos, but they are not relevant for the purposes of the present suit. Mr. Ghosh, for the appellant, has contended that Article 311 (2) gives a constitutional right to the employee charged to be given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. He submits that irrespective of the fact as to what might have happened prior to the issue of notice with regard to the proposed penalty, under Article 311 (2) of the Constitution, the employee charged has a right to an enquiry in reply to the notice.
His contention is that, after the notice to show cause in respect of the proposed penalty is served on the employee, he is entitled to reopen the whole matter by cross-examining the witnesses examined at the departmental enquiry and by producing his own evidence in defence. In support of this contention, reliance has been placed on a case of the Judicial Committee in High Commr. for India v. I. M. Lall, 75 Ind App 225 : (AIR 1948 PC 121) and on a case of the Supreme Court in Khem Chand v. Union of India, 1958 SCR 1080 : (AIR 1958 SC 300). In these cases, the question as has been raised by Mr. Ghosh did not actually fall to be decided. In both these cases, no notice at all was given to the employee charged for showing cause against the proposed penalty. In the Privy Council case, the report of the enquiry was not disclosed to the employee charged, and in the Supreme Court case, the only grievance of the employee was that no second notice was given as against the proposed penalty. But their Lordships of the Judicial Committee and of the Supreme Court decided the law on the subject and held that the employee charged was entitled to a full-fledged enquiry after the service of notice with regard to the proposed penalty. The proposition of law on the subject, as given in the Supreme Court decision, is to the following effect:
Reasonable opportunity to show cause in Article 311 (2) of the Constitution contemplates not merely the opportunity to do so at the enquiry stage but also when the competent authority, as a result of the enquiry proposes to inflict one of the three punishments mentioned in the Article on the delinquent servant. Such reasonable opportunity must, therefore, include (1) opportunity to deny his guilt and establish Ms innocence, which means that he must be told what the charges against him are and the allegations on which, such charges are based:
(2) opportunity to cross-examine the witnesses produced against him and examine himself or other witnesses on his behalf and, (3) opportunity to show that the proposed punishment would not be the proper punishment to inflict, which means that the tentative determination of the competent authority to inflict one of the three punishments must be communicated to him.
12. Accordingly, their Lordships held that the procedure followed in such cases must, therefore, include the giving of two notices to the servant, one at the enquiry stage and the other when the competent authority, as a result of the enquiry, tentatively determines to inflict a particular punishment on him. The generality of the meaning, scope and ambit of Article 311(2) has, however, been, cut down by their Lordships by an observation made in that case, if the Civil servant has been through an enquiry under Rule 55 (Civil Services (Classification, Control and Appeal) Rules), it would not be reasonable that he should ask for repetition of that stage, if duly carried out, and that each case depends on its own facts. Mr. Ghosh has contended that the above observation of their Lordships does not affect the constitutional right of the Civil servant to have an enquiry at the second stage, but has been made only by way of rule of prudence. There is, however, nothing in the judgment on the basis of which this interpretation of Mr. Ghosh may be accepted as correct, rather, he had to concede that he could not go so far as to contend that, if the demand of a fresh enquiry at the second stage has been made by an employee, he has a statutory right to have it, whether he took part or not in the departmental enquiry.
13. The above Supreme Court decision came to be considered by the Supreme Court in Major U. R. Bhatt v. Union of India, AIR 1962 SC 1344. That also was a case where the employee charged, after certain stage of the enquiry, declined to participate in the same. It was contended on his behalf, on the basis of the decision of the earlier Supreme Court case, referred to above that he was entitled to an opportunity to prove his defence after the notice as regards the proposed punishment was served on him. Their Lordships of the Supreme Court in this case, referring to that argument, observed as follows:
"Counsel for the appellant contends that the observations made by Chief Justice Das indicate that at both the stages namely, first before the Enquiry Officer and secondly, before the authority competent to impose punishment, the public servant concerned should be afforded the three opportunities set out in the judgment in Khem Chand's case, 1958 SCR 1080: AIR 1958 SC 300. But this contention is, in our judgment, devoid of force. On page 1099 (of SCR) : (at p. 308 of AIR) the learned Chief Justice observed approving the view of the Privy Council in High Commissioner for India v. I. M. Lall, 75 Ind. App 225: (AIR 1948 PC 121) that if the public servant has been through the enquiry under Rule 55 (Civil Services (Classification, Control and Appeal) Rules) it would not be reasonable that he should ask for a repetition at that stage if duly carried out, which implied that if no enquiry has been held under Rule 55 or any analogous rule applicable, then it will be quite reasonable for him to ask for an enquiry. It is evident that an opportunity to show cause is reasonable even if it does not contemplate a further opportunity to examine witnesses provided there has been a fair and full enquiry at an earlier stage before the Enquiry Officer. In the present case there was an inquiry held before the Enquiry Officer. The Enquiry Officer had afforded to the appellant an opportunity to remain present and to make his defence. It is true that all the witnesses of the State who could have been examined in support of their case were not examined viva voce, but that was because of the conduct of the appellant who declined to participate in the enquiry. He declined to take part in the proceeding and the Enquiry Officer was, in our view, justified in proceeding to act upoa the materials placed before him. Once the appellant expressed a desire not to take further part in the proceeding of the Enquiry Officer, that Officer was entitled to proceed ex parte and to act upon the materials placed before him. The enquiry made by the Enquiry Officer cannot therefore be challenged either on the ground of unfairness or incompleteness, the appellant having been afforded the protection of the Constitution guaranteed under Section 240 Clause (3) of the Government of India Act."
14. In Kapur Singh v. Union of India, AIR 1960 S. C. 493, it was pointed out that the President of India is not bound before passing an order dismissing a public servant to hear the evidence of witnesses. He could arrive at his conclusion on the evidence already recorded in the enquiry by the Enquiry Commissioner. By Article 311 of the Constitution, a public servant is entitled to show cause against the action proposed to be taken in regard to him, but exercise of the authority to pass an order to the prejudice of a public servant is not conditioned by the holding of an enquiry at which evidence of witnesses viva voce, notwithstanding an earlier fair and full enquiry before the Enquiry Commissioner, is recorded. It, therefore, appears that the generality of the meaning, scope and ambit of Article 311(2) of the Constitution of India, as envisaged in the judgment of their Lordships of the Supreme Court in Khem Chand's case, 1958 SCR 1080 : (AIR 1958 SC 300) has been whittled down by subsequent decisions of that Court.
In face of these decisions, it can safely be held that, if reasonable opportunity has been given to an employee charged to substantiate his defence at the departmental enquiry, it is not necessary that there should be a repetition of the same by giving an opportunity to him to cross-examine the witnesses examined at the enquiry and to adduce evidence in defence after the notice as regards the proposed punishment is served on him. Mr. Ghosh has, however, contended that the decision of their Lordships of the Supreme Court in Khem Chand's case, 1958 SCR 1080 : (AIR 1958 SC 300) that 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 refers only to such cases where the employee charged has taken part in the enquiry and it does not apply to an employee who has not taken part in the same. In other words, his contention is that an employee non-co-operating with the enquiry is in a better position than an employee who takes part in the enquiry. Thus, he wants to put a non-co-operating employee in an advantageous position over the one who had co-operated with the departmental enquiry.
In my opinion, this contention is absolutely without substance. As was pointed out by their Lordships in the case of Major U. R. Bhatt, AIR 1962 SC 1344, referred to above, once the appellant expressed the desire not to take further part in the proceeding before the Enquiry Officer, that officer was entitled to proceed ex parte and to act upon the materials placed before him and that the enquiry made by the Enquiry Officer is not to be challenged on the ground of unfairness or incompleteness, the appellant having been afforded, the protection of the Constitution guaranteed under Section 240(3) of the Government of India Act.
Mr. Ghosh has also relied on a Bench decision of the Bombay High Court in Dadarao Shegoji Tidke v. State of Madhya Pradesh, AIR 1958 Bom 204, in which it was held that during the departmental enquiry it was, no doubt, open to the employee charged to have a full say and to make a statement with regard to all the charges which were made against him and also to examine any witnesses in his defence, but it did not mean that if he failed to take part in that enquiry or to give his defence, he was necessarily precluded from putting forward his defence or from examining witnesses or cross-examining such witnesses as may have been examined during the enquiry by the Enquiring Officer. In that case, however, the employee charged was not shown two of the document on which the enquiry report was based and he was not given a personal hearing, nor was he allowed to cross-examine the witnesses. The decision in that case was, therefore, based on the facts' of that case, though the view taken appears to be of a general nature applicable to all cases. In view, however, of the decision of the Supreme Court in U. R. Bhatt's case, AIR 1962 SC 1344, the above decision of the Bombay High Court cannot be taken as an authority on the question at issue.
15. In Joga Rao v. State, (S) AIR 1957 Andh Pra 197, the view 'taken appeal's to be that the totality of the proceedings should be taken into consideration in finding out as to whether leason able opportunity was afforded to the employee charged or not. In my opinion, their Lordships of the Andhra Pradesh High Court, if I may say so with respect, have taken a correct view, and applying the principle of that case as well as the decisions referred to above, it has to be seen whether a reasonable opportunity was given to the appellant here or not. As already stated, after the charge-sheet was drawn up against the appellant, he took an attitude of avoiding the enquiry by making a submission that it should be decided as a preliminary point whether the charge-sheet was drawn up against him as an Assistant Station Master or as The Branch Secretary of the Mazdoor Union. In his explanation to the charge-sheet, he did not put forward his case on its merits. It further appears that he was called upon to give his explanation with regard to the charges framed against him, and it was intimated to him that a departmental enquiry will have to be made.
A notice of the departmental enquiry was served on him and after certain adjournments, as prayed for by him, he appeared with his Counsel and put forward the same submissions as he had done before by asking the enquiry committee to decide the jurisdictional point whether he was being proceeded with as an Assistant Station Master or as the Branch Secretary of the Mazdoor Union. But the committee definitely indicated to him that there could not be a piecemeal enquiry and the question raised by him would be decided at the close of the enquiry. The appellant and his Counsel took the attitude of boycotting the enquiry if the procedure that he wanted to be followed was not followed in deciding the jurisdictional point and they actually declined to take part in the enquiry thereafter. If, therefore, he could not cross-examine the witnesses or adduce evidence in his defence, the appellant must thank his lot. When the prescribed authority after examining the report of the enquiry committee, proposed to remove him from service, he preferred an appeal before the Regional Superintendent, before whom also he asked for production of the original Interview Register and to examine Mr. B. C. Bagchi, Chief Clerk.
The Regional Superintendent got the original Interview Register produced and examined Bagchi who was cross-examined by the appellant. The plaintiff also drew the attention of the Regional Superintendent to certain contradictions in the evidence of the witnesses examined by the enquiry committee. The Regional Superintendent, after considering the Interview Register, the evidence of Bagchi and the contradictions pointed out by the appellant, agreed with the finding of the prescribed authority that the plaintiff was liable to be removed from service and also agreed with the proposed punishment. Thus, taking the totality of the proceedings, I find that the plaintiff was given reasonable opportunity to meet the charges and to prove his defence. The refusal of the prescribed authority to permit him to re-open the enquiry by allowing him to cross-examine the witnesses and adducing evidence in his defence was, in the circumstances of the case, not unjustified and that did not in any way violate the provisions of Article 311(2) of the Constitution.
16. It has then been contended that, if the contradictions in the evidence of the witnesses be taken into consideration, it will appear that the order of removal of the plaintiff from service was unjustified on the facts of the case. As held in the Supreme Court decision in the case of U. R. Bhatt, AIR 1962 SC 1344, a reference to which has already been made, it is not within the competence of the Civil Court to sit in judgment over the decision of the authority which is competent by law to remove a public servant from service provided he has been afforded an opportunity to defend himself consistent with the Constitutional guarantee. The second contention raised on behalf of the appellant, therefore, fails.
17. The last contention relates to the jurisdictional point. The contention of the appellant is that he was a Branch Secretary of the Mazdoor Union and he bad gone to the District Mechanical Engineer for putting forward the grievances of the workmen and, as such, if the administration had any complaint against him, the matter could be reported to the General Secretary of the North Eastern Railway Mazdoor Union. It is urged that, for what he did as the Branch Secretary of the Mazdoor Union, the departmental enquiry under the Railway Establishment Code was without jurisdiction and the charges framed against him also could not be the subject-matter of enquiry under the said Code. On behalf of the respondent, however, it is submitted that the appellant was first an employee of the Railway and continued to be so on the date of the incident in question, and even though he happened to be the Branch Secretary of the Mazdoor Union, he did not cease to be an employee of the Railway.
It was urged that he could not distinguish between his capacity as an Assistant Station Master and his capacity as the Branch Secretary of the Mazdoor Union. In support of their respective contentions, counsel for both parties have relied on the Supreme Court case in Laxmi Devi Sugar Mills v. Hand Kishore Singh, 1956 SCR 746: ((S) AIR 1957 SC 7). In that case, the steno-typist of the General Manager of Laxmi Devi Sugar Mills, the respondent in that case, was also the Vice-president of the Union of workers which was affiliated to the Indian National Trade Union Congress and was known as Chini Mills Mazdoor Sangh. After certain incidents, which it may not be necessary to mention here, the Vice-President of the Union (the respondent) made a speech criticising the attitude of the General Manager to the following effect:
"The General Manager of this factory wants to crush the Labour movement from the very beginning. He allowed some of his intermediaries to join strike when Shri Shibban Lal Saxena had served a strike notice. His men had also persuaded some of our members to join the strike. As a result of this we had decided to launch a strike. On the other hand, the Manager Saheb was sitting on the phone for the permission of the Collector to dismiss all our fellow workers. Shri Moti Lal Singh was able to discover this conspiracy and he at once-prevented us from going on strike. Then Manager Sahib could not succeed in his plan.
This time ho has falsely accused 76 of our workers of resorting to Tools-down strike. These workers will surely be reinstated. But our efforts are rendered useless due to the acts of the Government Officers; the Collector of this District is, getting something secretly from the Manager Sahib. We have only one alternative open to us, let us again agitate for his dismissal. Many of the proprietors have written to me against him."
A resolution was moved at that meeting for the reinstatement of the 76 workers and dismissal of' the General Manager and the same was passed. The General Manager, thereafter, addressed a letter to the respondent asking him to give him information regarding the resolution, but the respondent replied that he never attended any meeting in his capacity as the steno-typist of the factory and expressed his inability to say anything in the capacity in which the letter had been addressed by the General Manager to him. He also stated that it was none of the factory's business to seek information from him for his personal, social or political activities outside the factory area. The General Manager again wrote to him stating that he was entitled to seek the information from him even in his personal capacity and asked him to let him have the reply to the queries contained in his previous letter. The respondent then replied that some of the conclusions drawn by the General Manager were "simply out of self-complacency" and he respectfully begged to differ from the General Manager and that he had nothing further to add to his earlier reply.
Thereafter, the General Manager served upon, the respondent a charge-sheet calling upon him to show cause why action should not be taken against him under certain clause of the Standing Orders for making a speech in the meeting referred to above wherein, among other defamatory remarks, the respondent instigated the workers to take steps for the removal of the General Manager. The respondent submitted his written statement in which he stated that there was absolutely no justification whatsoever for charging him with breach of the Standing Orders under the clause referred to in the charge-sheet and he denied the allegations contained in the charge-sheet and wound up by asking the General Manager to enlighten him as to under what rules of the Factories Act, Commercial Establishments Act or the Standing Orders, written replies in the matters than one's daily routine work of the factory were demanded at such short notice. Subsequently, an enquiry was held by the General Manager and the proceedings thereat were recorded in the form of questions and answers. During the enquiry, the respondent refused to answer the questions which were categorically put by the General Manager to him and stated that he had nothing to add to his written statement.
He also took up the attitude that if he had taken part in any meeting held under the auspices of the Chini Mills Mazdoor Sangh outside the factory, the General Manager should write to the officials of the Sangh for necessary information. It was specifically put to him that no confidential work was taken from him as he had been taking active interest in the anti-management activities maliciously and had been exploiting the poor labour to force himself being confirmed by the management. In reply, he said that he did not agree with it and it was not a question which needed any reply. As a result of the enquiry, the General Manager submitted his report and his findings were that the respondent had made a speech exhorting the workmen of the factory to pass a resolution for the removal of the General Manager, that the management was bound to lose confidence if a worker who had excited other workers against the General Manager and refused to give a direct reply to direct questions, that, in the absence of a steno-typist who could enjoy the confidence of the management, it was impossible to run the factory without the risk of any trouble and that the respondent was thus guilty of misconduct and acts subversive of discipline.
The report was accepted by the management and, as a proceeding was already pending before the Labour Appellate Tribunal, the appellant made an application under Section 22 of the Industrial Disputes (Appellate Tribunal) Act, 1950, for permission to dismiss the respondent from its employ. The Labour Appellate Tribunal held that the making of the speech in question at the meeting held by the respondent as the Vice-President of the Union was within the scope of the legitimate activities of the Union and that the speech said to have been made by the respondent at that meeting could not be said to be an act subversive of discipline. On these findings, the Labour Appellate Tribunal dismissed the application of the appellant. The appellant, after obtaining special leave of the Supreme Court, preferred an appeal against that order before that Court. Their Lordships of the Supreme Court held that, as the respondent was the Vice-President of the Union, any resolution passed by the Union asking for the removal of the General Manager would, prima facie, be perfectly legitimate if the members of the Union thought that there were circumstances warranting the same, and that the resolution by itself would not have the effect of harming the General Manager at all. Their Lordships further pointed out that, so far as the Union was concerned, apart from mala fides or malice or ill-will, the act of its passing, the resolution would be innocuous and would be liable to be visited with any punishment and the members of the Union would not be committing any breach of the Standing Orders nor would they be guilty of any act subversive of discipline. Their Lordships, therefore, dismissed the appeal.
18. Mr. Ghosh has, therefore, contended that the appellant, in having done what he did on the date of the incident as the Branch Secretary of the Mazdoor Union, did not commit any act of misconduct and was not, therefore, liable to any punishment. But, if the observations made by their Lordships in the above case are taken into consideration, this case, in my opinion, instead of supporting the appellant, gives weight to the contention of the respondent. It was urged on behalf of the appellant before their Lordships of the Supreme Court in the above case that the conduct of the respondent was subversive of discipline and amounted to such misconduct as would entitle the appellant to dismiss him from its employ. Their Lordships observed that there was considerable force in this argument and they were of opinion that the respondent adopted an attitude unbecoming an employee of the appellant and that he adopted a truculent attitude in the course of the correspondence and resorted to the theory of his dual personality refusing to answer the queries addressed to him by the General Manager.
Their Lordships further pointed out that this attitude was, to say the least, reprehensible, and that even though he happened to occupy what he considered to be the august position of the Vice-President of the Union, he did not cease to be are employee of the appellant and the attempt to distinguish between his capacity as the steno-typist and his capacity as the Vice-President of the Union was absolutely puerile. Their Lordships said that he ought to have realised that he was first and foremost an employee of the appellant and owed a duty to the appellant to answer all the queries which had been addressed to him by the General Manager and that his evasion to give such replies on the pretext of shielding himself under his capacity as the Vice-President of the Union was absolutely unjustifiable and if such insubordination and breach of discipline had been the subject-matter of the charges made against him, their Lordships did not see how the respondent could have escaped the punishment of dismissal.
19. Again, referring to the attitude which the respondent adopted at the enquiry in refusing to answer direct questions that were addressed to him and having the temerity to ask the General Manager to see his written statement and find out for himself the answers to the same, their Lordship observed that, to say the least; the respondent was guilty of insubordination and if his attitude was such as would not conduce to the maintenance of discipline in the factory, they would have found it difficult to resist the appellant's claim for his dismissal if he had been charged with having been guilty of such misconduct.
20. Thus, it appears that in that case their Lordships agreed with the view of the Labour Appellate Tribunal only because the charges in regard to the matters referred to above had not been framed, and took the view that had such charges been framed, the respondent was liable to the punishment of dismissal.
21. In the instant case, however, there is no oral evidence that on the date of the incident in question the appellant had gone to the District Mechanical Engineer as the Branch Secretary of the Union. Our attention has, however, been drawn to the Interview Register (Ext. J) which shows the description of the appellant as the Secretary of the Mazdoor Union in regard to the interview dated the 9th June, 1956. The appellant had also interviews on previous occasions. For example, he had an interview on the 5th June, 1956. The last column of the register shows that this interview was as per appointed time. He had also an interview on the 31st May, 1956, and the last column shows the purpose for which he had the interview, namely, for discussion with D.M.E.". But on the 9th June, 1956, there is nothing to show whether he had gone there on previous appointment or the purpose for which he had gone there. Thus, there is no satisfactory evidence to show that on the 9th June, 1956, he had gone to the office of the District Machanical Engineer for any purpose of the Mazdoor Union as its Branch Secretary. The contention of Mr. Ghosh on this point also, therefore, fails.
22. No other point has been raised.
23. There is thus no merit in this appeal, which is, accordingly, dismissed with costs.
A.B.N. Sinha, J.
24. I agree.