Gujarat High Court
Union Of India (Uoi) And Ors. vs Munia Narendra Kumar Prabhat Singh ... on 11 February, 2008
Author: R.M. Doshit
Bench: R.M. Doshit, K.M. Thaker
JUDGMENT R.M. Doshit, J.
1. These appeals, preferred under Clause 15 of the Letters Patent by Union of India and Western Railway, arise from common judgment and order dated 30th July, 1993 passed by the learned Single Judge in Special Civil Application No. 2170 of 1984 and Special Civil Application No. 2164 of 1984.
2. The respondents [hereinafter referred to as the 'delinquents'] were employed by the Western Railway as 'Rakshaks' in the Railway Protection Force. On 13th May, 1981, the delinquents were posted on duty as 'Rakshaks' in Sabarmati Engineering Shop. While leaving, they were found to be clandestinely carrying certain iron scrap. For the said incident, a disciplinary enquiry was instituted against them. They were called upon to submit reply to the imputation of charge made against them. The disciplinary enquiry was entrusted to the enquiry officer. The delinquents were given opportunity to put forth their written and oral defence before the enquiry officer. The enquiry officer found that the allegations made against the delinquents were proved. In view of the said findings, on 29th May, 1982 the disciplinary authority issued notice upon each delinquent to show cause why he should not be held guilty and be visited with punishment. The said notices were replied by the delinquents. The defence of the delinquents was that they were surreptitiously framed in the said incident and false cases were made out against them. The said defence was not accepted by the disciplinary authority. By order dated 17th August, 1982 the disciplinary authority observed that; I have carefully gone through the written statement of his defence dt. Nil in reply to show cause Notice dt. 29-5-82 & find it most unsatisfactory. His contention that a false case has been made out against him & his statement recorded by the Investigating Officer with threat are totally incorrect in view of the evidence adduced during the course of departmental enquiry & its findings. The disciplinary authority ordered immediate removal of the delinquents. Feeling aggrieved, the delinquents preferred the above writ petitions before this Court.
3. The only contention pressed before the learned Single Judge was that the disciplinary authority had not taken into consideration the defence statement submitted by the delinquents. The submission appealed to the learned Single Judge. The learned Single Judge allowed the writ petitions, set aside the orders of removal from service made against the delinquents, directed the appellants to reinstate the delinquents in service, and to pay them the backwages after ascertaining the amount the delinquents had earned. Therefore, the present Appeals.
4. The learned Single Judge relied upon the observations made by the Hon'ble Supreme Court in the matter of Divisional Personnel Officer, Southern Railway v. T.R. Challappan . In the said judgment, the Hon'ble Supreme Court held that:
The word 'consider' merely connotes that there should be active application of the mind by the disciplinary authority after considering the entire circumstances of the case in order to decide the nature and extent of the penalty to be imposed on the delinquent employee on his conviction on a criminal charge. This matter can be objectively determined only if the delinquent employee is heard and is given a chance to satisfy the authority regarding the final orders that may be passed by the said authority. In other words, the term 'consider' postulates consideration of all the aspects, the pros and cons of the matter after hearing the aggrieved person.
This judgment has been considered extensively by the Constitutional Bench of the Hon'ble Supreme Court in the matter of Union of India v. Tulsiram Patel . The Bench, speaking through Hon'ble Mr. Justice M.P. Thakkar held that, It is thus obvious that the word consider in its ordinary and natural sense is not capable of the meaning assigned to it in Challappan's case.... Undoubtedly, the disciplinary authority must have regard to all the facts and circumstances of the case as set out in Challappan's case. As pointed out earlier, considerations of fair play and justice requiring a hearing to be given to a government servant with respect to the penalty proposed to be imposed upon him do not enter into the picture when the second proviso to Article 311(2) comes into play and the same would be the position in the case of a service rule reproducing the second proviso in whole or in part and whether the language used is identical with that used in the second proviso or not.
It would not be out of place to mention here that, in both the above referred cases, the Hon'ble Court was considering imposition of penalty on a delinquent Government servant under Article 311(2) of the Constitution. Strictly speaking, the above referred observation shall not apply to the facts in the present cases. A regular disciplinary proceeding was held against both the delinquents, the delinquents had been offered proper opportunity of defence at every stage of the disciplinary proceeding. Besides, the impugned order made by the disciplinary authority is self-explanatory. The disciplinary authority has specifically recorded that, he had carefully gone through the defence statement. The disciplinary authority has also recorded the specific defence raised by the delinquents, the fact that he did not accept the said defence and the reasons why the said defence was not acceptable. All this is done in one short paragraph. Nevertheless, it indicates active application of mind to the facts on record and the specific defence raised by the delinquents. The learned Single Judge has clearly erred in relying upon the judgment in the matter of T.R. Challappan [supra] and in holding that the disciplinary authority had failed to consider the defence statement of the delinquents.
5. In absence of any other challenge to the impugned orders of punishment, for the reasons recorded hereinabove, the petitions should fail.
6. The appeals are allowed. The impugned common judgment and order dated 30th July, 1993 passed by the learned Single Judge, in Special Civil Applications No. 2167 and 2170 of 1984, is quashed and set aside. The Special Civil Applications No. 2167 and 2170 of 1984 are dismissed. The parties will bear their own cost. Registry will maintain copy of this judgment in each Appeal.