Calcutta High Court
Swapan Kumar Maity vs South Eastern Railways And Ors. on 31 August, 2006
Equivalent citations: 2007(4)CHN616
Author: Bhaskar Bhattacharya
Bench: Bhaskar Bhattacharya
JUDGMENT Bhaskar Bhattacharya, J.
1. This mandamus appeal is at the instance of a writ petitioner and is directed against the order dated 10th January, 2005 passed by a learned Single Judge by which His Lordship rejected the writ application filed by the appellant in which the appellant prayed for setting aside the decision taken by the Railway Authority to cancel his selection to the post of "Commission Agent" for Badalpur Passenger Halt and to hold a fresh selection.
2. There is no dispute that pursuant to an advertisement given by the South-Eastern Railway Authority for awarding contract for working as a Commission Agent for Badalpur Passenger Halt in between Kanthi-Digha New Broad Gage Section, the writ petitioner participated in the process of selection and he was declared selected for working as a Commission Agent by the letter of the Senior Divisional Commercial Manager/Kharagpur dated 9th December, 2004.
3. Subsequently, by a further letter dated 22nd December, 2004, the said Senior Divisional Manager informed the appellant that the competent authority had decided to cancel the previous order awarding contract in his favour. It was further informed that the authority had taken the decision for fresh selection of Commission Agent for Badalpur P.H. through a further notification which would be published shortly.
4. Being dissatisfied with the aforesaid decision informed by the letter dated 22nd December, 2004, the appellant filed the writ application before the learned Single Judge thereby praying for setting aside the said decision on the ground that neither any reason was assigned to him before cancelling the previous order awarding contract nor was any opportunity of hearing given to him controvert any allegation against him, if any, and at the same time, he described the action of the Railway Authority as a mala fide one.
5. The learned Single Judge, by the order impugned herein, has rejected the writ application on the ground that the appointment was given purely on contractual basis and there was no question of absorption in the Railway Service and that in the letter giving contract in favour of the appellant, the Railway Authority specifically stated that such appointment was purely contractual in nature and therefore, the learned Single Judge proceeded, the writ petitioner, if had suffered any damages, had his remedy elsewhere.
6. Being dissatisfied, the writ petitioner has preferred the present mandamus appeal.
7. Mr. Bandyopadhyay, the learned senior Advocate appearing on behalf of the appellant, has vehemently contended before us that the learned Single Judge erred in law in dismissing the writ application by totally overlooking the fact that his client never prayed for absorption in the Railway Service but his grievance is that after selecting him as a Commission Agent being the fittest candidate in the process of selection, the Railway Authority without assigning any reason and giving any opportunity of hearing could not withdraw such decision and issue a fresh advertisement for selection.
8. In this appeal, the respondent authority has filed affidavit-in-opposition and in such affidavit, it is stated that as the appellant was involved in a murder case and was kept in the police custody as well as the jail custody in connection with the said criminal case, considering the public interest at large, the Railway Authority decided to cancel the appointment and start a fresh process of selection. According to the Railway Authority, it has every right to cancel the previous decision if it decides not to appoint a person who is involved in criminal case in the public interest.
9. There is no dispute that writ petitioner is indicted in a criminal case under Section 498A read with Section 306 of the Indian Penal Code consequent to the suicide of his sister-in-law (elder brother's wife) and is at present at large on bail.
10. Therefore, the prime question that arises for determination in this mandamus appeal is whether the Railway Authority was justified in cancelling the previous selection only because the appellant was arraigned in a criminal case under Section 498A and Section 306 of the Indian Penal Code.
11. Mr. Bandyopadhyay, the learned senior Advocate appearing on behalf of the appellant submitted before us that there are only two trains which stop at the said halt-station during the whole of a day, one in the early morning and the other in the evening and, therefore, even if his client is required to attend the Court in connection with the criminal case, there will be no impediment in the sale of tickets at the relevant points of time. Moreover, Mr. Bandyopadhyay submits that the Rules of Railway Authority permit a Commission Agent to appoint an assistant for the purpose assisting him in performing his duty as such agent. Mr. Bandyopadhyay, however, asserts that his client has been made accused in the criminal case on false allegations and so long he is not convicted, it cannot be said that he is really guilty.
12. Mr. Mukherji, the learned Advocate appearing on behalf of the Railway Authority, however, submits that while selecting a person as Commission Agent, it has every right to see the antecedent of the applicant and once it was brought to the notice of the Railway Administration that the appellant was involved in a murder case, there was no illegality in cancelling his selection. Mr. Mukherji submits that actual agreement was not even entered into between the Railway and the writ petitioner and before entering in to such agreement, his client had taken the decision for cancellation of the offer. Mr. Mukherji, however, submits that although in the written communication no reason was assigned, it will appear from the record itself that the pendency of the criminal case against the appellant is the real cause of such order of withdrawal of the offer.
13. In this connection, we asked Mr. Mukherji to produce the original records relating to the cancellation of the selection of the appellant before us. It appears from the records that after the selection on 9th December, 2004 the concerned officer has noted in the ordersheet on December 15, 2004 that in view of the information received by him that the writ petitioner was involved in a case of "burning of a lady", his selection should be cancelled. It appears from the FIR produced before us that the sister-in-law of the appellant had committed suicide by "hanging" and the case was under Section 498A read with Section 306 of the Indian Penal Code and therefore, it was not a case of murder or burning of a lady.
14. It is true that after the dismissal of the writ application, a second process of selection has been initiated and subsequently, a person not party to this proceeding has already been appointed in place of the appellant who is working although such appointment was made during the pendency of this appeal. The appellant without prejudice to his rights and contentions in this appeal participated in the said process of selection but was unsuccessful.
15. Therefore, the first question that arises for determination in this appeal is whether in the absence of the person who has been appointed in place of the appellant as the Commission Agent, the present appeal is maintainable.
16. In our view, the appellant having challenged only the action of the Railway Authority in cancelling his selection, and the new Commission Agent having been appointed in place of the appellant pursuant to such cancellation of the offer during the pendency of this appeal, he is not a necessary party to this appeal as for effective adjudication of this appeal his presence is not necessary. Simply because he will be affected by any favourable order passed in this appeal in favour of the appellant, such fact will not make him a necessary party to this proceeding. His principal's action being challenged and he being an agent of the Railway appointed during the pendency of the appeal is bound by the decision of this appeal. He has no independent right or contention other than that of his principal and thus, he is not required to be made party in this appeal.
17. In this connection, we may profitably refer to a decision of the Supreme Court in the case of State of Himachal Pradesh v. Kailash Chand Mahajan reported in 1992 Supp. (2) SCC 351. In that case, the writ petitioner ceased to hold his post consequent upon the amendment of the provision introducing the age of superannuation and another person was appointed to the post held by him till further order. The petitioner filed the writ application challenging the amended provision and his consequent termination of service without impleading that person. While dealing with such a case, the Supreme Court was of the view that the matter should be approached from this point of view, e.g., to render an effective decision whether the presence of that person was necessary? According to the Supreme Court, what the writ petitioner questioned in the writ application was the validity of the ordinance and the subsequent enactment by which he had been deprived of his right to continue with the job. But, he did not claim any relief against the person, who was holding the post in his place due to such amendment. That person came to be appointed consequent to the suspension of the petitioner and therefore, the failure to implead that person did not affect the maintainability of the writ application. While arriving at such conclusion, the Supreme Court relied upon an earlier decision of the said Court in the case of A Janardhana v. Union of India , where while dealing with a question of a similar nature, the Supreme Court made the following observation:
Approaching the matter from this angle, it may be noticed that relief is sought only against the Union of India and the Ministry concerned and not against any individual nor any seniority is claimed by anyone individual against another particular individual and therefore, even if technically the direct recruits were before the Court, the petition is not likely to fail on that ground.
18. We thus find no substance in the aforesaid contention of Mr. Mukherji.
19. The next question is whether any legal right accrued in favour of the appellant by virtue of the letter of selection dated December 9, 2004 although the formal contract pursuant to such offer was not entered in to between the parties.
20. We are quite conscious that by virtue of the offer of selection, no legal right accrued in favour of the writ petitioner but such offer gave rise to a legitimate expectation of the appellant to get an order of appointment in the said post. As pointed out by the Supreme Court in the case of Madras City Wine Merchants' Association v. State of Tamil Nadu reported in 1994(2) SCC 509, a legitimate expectation may arise-
(a) if there is an express promise given by a public authority; or
(b) because of the existence of a regular practice, the claimant can reasonably expect to continue; or
(c) such an expectation must be reasonable.
21. However, if there is a change in policy or in public-interest, the position is altered by a Rule or legislation, no question of legitimate expectation would arise.
22. In the case before us, by the letter dated December 9, 2004 an express promise to appoint the appellant was given and he was asked to convey his willingness which he signified within the time fixed. However, by a letter dated December 22, 2004 such offer was withdrawn without assigning any reason.
23. The Supreme Court in the case of Food Corporation of India v. Kamdhenu Cattle Feed Industries Ltd. pointed out in the following words how far the doctrine of legitimate expectation can be resorted to for the purpose of giving relief to a citizen in an application under Article 226 of the Constitution of India:
The mere reasonable or legitimate expectation of a citizen, in such a situation, may not by itself be a distinct enforceable right, but failure to consider and give due weight to it may render the decision arbitrary and this is how the requirement of due consideration of legitimate expectation forms part of the principle of non-arbitrariness, a necessary concomitant of the rule of law. Every legitimate expectation is a relevant factor requiring due consideration in a fair decision-making process. Whether the expectation of the claimant is reasonable or legitimate in the context is a question of fact in each case. Whenever the question arises, it is to be determined not according to the claimant's perception but in the larger public interest wherein other more important consideration may outweigh what would otherwise have been the legitimate expectation of the claimant. A bona fide decision of the public authority reached in this manner would satisfy the requirement of non-arbitrariness and withstand judicial scrutiny. The doctrine of legitimate expectation gets assimilated in the rule of law and operates in our legal system in this manner and to that extent.
24. Bearing in mind the aforesaid principle, we now propose to consider the stands taken by the Railway Administration in the affidavit used before us and to see whether the same is a bona fide one taken in the public interest.
25. In the affidavit-in-opposition placed before us, the Railway Administration for the first time disclosed the reason for cancellation of the selection of the appellant. In such affidavit-in-opposition, however, it is stated that since the appellant was involved in a murder case the competent authority was compelled to cancel his contractual appointment and decided to hold fresh selection. It is further stated that the initial offer of appointment was purely a contractual matter and formally no contract having been executed between the parties, the competent authority decided to withdraw such offer after considering the public interest as the appellant was kept in police custody as well as jail custody. It is further stated that a mass-representation against the character of the appellant having been received, the Railway Authority after enquiry, came to a definite finding of involvement of the appellant in the crime and detention and for the interest of the Railway and public at large, cancelled his candidature. A true copy of the mass-representation has been annexed to the affidavit-in-opposition. It appears that although the said representation is dated 17th December, 2004, the same was received by the authority on 21st December, 2002 and the concerned officer directed translation of the said representation which is originally made in vernacular.
26. It, however, appears from the original records, vide note No. 10, that the concerned officer i.e., the Senior Divisional Commercial Manager took decision on 15th December, 2004 for cancellation of the appointment on the ground that the appellant was involved in a case of "burning of a lady" as he heard such fact from one Shri Palodhi on December 13, 2004 during his visit. Therefore, in the affidavit-in-opposition, the Railway Administration did not disclose the real reason that appointment had already been cancelled on the basis of earlier information on 15th December, 2004 that he was involved in a case of burning of a lady. It further appears from the record that subsequently various other representations have been made at the instance of other persons including the father of the deceased sister-in-law of the appellant but those are all received after taking decision of cancellation of the offer on 15th December, 2004 by the competent authority. It is, therefore, clear that the reason disclosed in the affidavit-in-opposition, e.g. receipt of a mass-petition, has been cooked up after taking actual decision on 15th December, 2004 by bringing on record all those subsequent representations. We further find from the xerox copy of the FIR which is also available on the records that the sister-in-law of the appellant committed suicide and accordingly, a case under Section 498A read with Section 306 of the Indian Penal Code had been started against the appellant and others.
27. From the aforesaid facts it is clear that the Railway Authority took actual decision to cancel the selection of the appellant and to give fresh advertisement on 15th December, 2004 but in affidavit they have relied upon the alleged subsequent representations. The further case of the respondent in the affidavit that the appellant was orally informed about the entire allegations against him and was given opportunity of hearing on December 22, 2006 is a blatant lie as would appear from the fact that the decision of cancellation of selection was taken long back as indicated above.
28. The next question is, if a person who is otherwise selected as the fittest is involved in criminal proceedings under Section 498A read with Section 306 of the Indian Penal Code, whether such involvement itself is a ground for revocation of appointment when at the time of cancellation of appointment the appellant had already obtained bail from the competent Court.
29. If any duly-appointed railway employee of a sanctioned post is involved in an offence under Section 498A read with Section 306 of the Indian Penal Code which has nothing to do with his official duty as an employee of the railway, the Railway Administration cannot terminate the service of such an employee so long the Criminal Court does not hold him guilty of such offence. Even in such a case, so long he will be detained under police custody or jail custody pending investigation or trial, he will be deemed to be under suspension and after he is released on bail, it is for the Railway Authority to decide whether he should be still kept under suspension till the disposal of the trial. Such decision depends upon the nature and the gravity of the offence alleged.
30. Even in such circumstances, there is no scope of starting any parallel departmental enquiry against the indicted employee during investigation or trial as the offence is not alleged to have been committed either in course of employment or against the property or the person of the employer or any co-employee in course of or in connection with performance of the official duty. In this connection, it will be profitable to refer to the following observations of the Apex Court in the case of Tata Oil Mill Ltd. v. Workmen :
The first point which calls for our decision in this appeal is whether the Tribunal was right in holding that the facts proved against Raghavan did not attract the provisions of Standing Order 22(vii) of the Certifited Standing orders of the appellant. The said standing order provides that without prejudice to the general meaning of the term "misconduct", it shall be deemed to mean and including, inter alia, drunkenness, fighting, riotous or disorderly or indecent behaviour within or without the factory. It is common ground that the alleged assault took place outside the factory, and, in fact, at a considerable distance from it. The Tribunal has held that the assault in question can be treated as a purely private matter between Reghavan and Augustine with which the appellant was not concerned and as a result of which Standing Order 22(viii) cannot be invoked against Raghavan. Mr. Menon who has appeared for the respondent before us, has contended that in construing standing order of this character, we must take care, to see that disputes of a purely private or individual type are not brought within their scope. He argues that on many occasions, individual employees may have to deal with private disputes, and sometimes, as a result of these private disputes, assault may be committed. Such an assault may attract the relevant provisions of the Indian Penal Code, but it does not fall under Standing Order 22(viii). In our opinion, this contention is well-founded. It would, we think, be unreasonable to include within Standing Order 22(viii) any riotous behaviour without the factory which was the result of purely private and individual dispute and in course of which tempers of both the contestants became hot. In order that Standing Order 22(viii) may be attracted, the appellant should be able to show that his disorderly or riotous behaviour had some rational connection with the employment of the assailant and the victim.
31. According to Article 311(2) of the Constitution of India, if a Criminal Court passes an order of conviction, that itself is a ground for termination of his service and there is no necessity of initiating any departmental proceedings against a regular employee.
32. From the aforesaid petition of law it is clear that at the most, a regular employee, in a situation like the present one, can be kept under suspension till the disposal of the criminal proceedings even if he is released on bail in the event the offence alleged has nothing to do with his duty in the capacity as an employee of the railway and not committed in course of or in connection with the employment but he cannot be at any rate dismissed from service before he is found to be guilty by a competent Court.
33. We are quite conscious that the Apex Court in number of decisions has pointed out that both the criminal proceedings and the departmental proceedings may continue simultaneously and even after the acquittal in a criminal case, the departmental proceedings may nevertheless continue because the standard of proof in criminal proceedings is higher than that in the departmental proceedings; in the case of the former, the charge must be proved beyond reasonable doubt whereas in the latter type of an enquiry, preponderance of probability is the guiding factor. But in all those cases, the criminal acts were committed in course of employment of in connection therewith or against the employer or the co-employee and thus, it also gave rise to misconduct resulting in the initiation of the departmental proceedings. If an employee appropriate the money of the employer but notwithstanding such fact is acquitted in the criminal proceedings, the employer can still hold departmental enquiry as he may not be satisfied with the investigation conducted by the police and the consequent acquittal because he has suffered for the misdeed of the employee and accordingly, can start fresh, departmental proceedings. But in a case, where the alleged offence is not in course of employment or has no connection with the employment, after the acquittal in the criminal proceedings, the employer has no right to investigate the self-same allegation by himself. The following oft-quoted decisions of the Supreme Court will show that in all those cases the offence was committed in course of or in connection with the employment and therefore, the Apex Court approved parallel departmental enquiry:
(1) Delhi cloth and General Mill Ltd. v. Kushal Bhan ;
(2) Depot Manager v. Yusuf Ali ;
(3) State of Karnataka v. T. Venkatarananappa ;
(4) Nelson Motis v. Union of India ;
(5) Senior Superintendent Post Office v. A. Gopalan ;
(6) Government of A.P. v. C. Muralidhar ;
(7) South Bengal State Transport Corporation v. Swapan Kumar Mitra .
34. We have, however, found only one reported decision of the Apex Court in the case of Sulekh Chand v. Commissioner of Police where the appellant although was acquitted of the charge of bigamy which has nothing to do with his employment was ordered to face fresh departmental enquiry on the same allegation and such decision was approved by the Supreme Court. The Supreme Court in that case pointed out that Rule 28 of the Karnataka State Civil Service Rules prohibited bigamy without the permission of the Employer and such act amounted to "misconduct" under the Rules itself and thus, notwithstanding acquittal in the criminal case where the standard of proof was higher than the one prevailing in the departmental enquiry, the employer was entitled to proceed with the departmental enquiry alleging violation of Rule 28. The Apex Court, however, held that suspension during such enquiry after acquittal was uncalled for. In our view, the said decision is not an authority for the proposition of law that after acquittal in a regular criminal trial in respect of an offence which is in no way connected with the employment of the employee, the employer can make separate investigation in relation to the same offence otherwise, even after acquittal in a murder or rape case, for instance, not connected with the employment, the employee should face fresh departmental proceedings and the employer should be authorised to hold fresh trial on the question of murder or rape. We, thus, hold that after the acquittal in a criminal case involving offences unconnected with the employment, the employer is not even entitled to proceed departmentally against the employee for the same offence unless the Statutory Rules authorises such enquiry. The observations of the Supreme Court in the case of Tata Oil Mills Ltd. (supra), quoted by us earlier, justify our above conclusion.
35. The question before us is, if in case of a regular employee, his service cannot be terminated merely because he is involved in a criminal case of this nature and the fate of such case is awaiting adjudication, whether a person, otherwise selected by the Railway Administration as the fittest person for acting as a Commission Agent of the Railway for performing job of sale of tickets on behalf of the railway, should lose such opportunity simply because he is one of the accused in a criminal proceedings under Section 498A read with Section 306 of the Indian Penal Code.
36. In our view, so long a person is not found guilty by the competent Court of law, he should be presumed to be innocent. Therefore, the Railway Authority cannot terminate or withdraw the appointment of an otherwise selected person simply because at that point of time he is involved in a criminal proceeding. If in the present case, ultimately the writ petitioner/appellant is acquitted of the offence on merit, even then, he will lose the job for no fault on his part for the decision taken by the Railway Administration.
37. We, are therefore, of the opinion that in this type of a case, it is the duty of the Railway Authority to either stay the operation of the order of appointment pending the trial if the Railway Administration is of the view that the nature of offence and the allegation against the petitioner is so grave that he should not be permitted to join; otherwise, just like the case of an ordinary employee involved in this type of a criminal case, if he is released on bail, he should be permitted to accept the job subject to the result of the criminal proceedings provided that the Railway Administration is of the opinion that a similar case, it would not have suspended a regular employee after he obtained bail.
38. We have already pointed out that the decision of the Railway Authority in the person case is based wrong information that the appellant was involved in a case of burning of a lady whereas the case is that his sister-in-law has committed suicide by hanging and he has been accused along with his mother, brother and sister for the offence punishable under Section 498A read with Section 306 of the Indian Penal Code and in the affidavit the Railway Administration has unsuccessfully tried to improve its defence by taking shelter under mendacity.
39. We, accordingly, set aside the order passed by the learned Single Judge as His Lordship was mistakenly under the impression that it is a case of demand of absorption in the regular service. We also set aside the decision of the Railway Authority withdrawing the offer to the appellant as the same was really taken on December 15, 2004 on wrong information received by the Senior Divisional Commercial Manager from one Sri Palodhi on 13th December, 2004 and consequently, the decision to re-advertise was also erroneous without taking into consideration the real fact. The decision was, however, communicated to the appellant subsequently on December 22, 2004.
40. We, therefore, direct the Railway Authority to consider the materials available to the authority in connection with the concerned criminal proceedings and to decide whether on the basis of material so for placed, it is a fit case for permitting the appellant to undertake the job; if the Railway Administration is of the view that the allegation against him and the materials available are so serious that even if he were a regular employee, he would have been kept under suspension during the trial, the Railway Authority will permit the subsequently selected person to continue subject to the final decision of the criminal proceeding; otherwise, the appellant should be permitted to accept the job subject to the outcome of the criminal proceedings.
41. If, the Railway Administration is of the opinion that the allegation against the appellant is so grave that in such a situation even a regular employee would have been kept under suspension till the disposal of the Criminal Trial, the appointment of the appellant will be kept in abeyance and if the appellant is acquitted in the long run, he should be permitted to undertake the job for which he was already selected provided he will even then possess all the necessary qualifications of the Commissions Agent as per advertisement. We have already pointed out that the offence alleged against him being not against the person or the property of the Railway or its employee, there is no scope of refusing him the appointment even if he is discharged from the criminal case on technical ground because in this case there is no scope of departmental inquiry even after acquittal.
42. The Railway Authority is directed to take a fresh decision within a month from the date of communication of the order after giving an opportunity of hearing to the appellant and to convey the decision to him within a fortnight thereafter.
43. The order impugned in the writ application and that of the learned Single Judge are, thus, set aside. The appeal is allowed to the extent indicated above.
44. In the facts and circumstances, there will be, however, no order as to costs.
Prabuddha Sankar Banerjee, J.
45. I agree.