KUNHABDULLA Vs. UNION OF INDIA UOI

JUDGEMENT

(1.) The petitioner who was an Assistant Station Master at Ambur Railway Station of the Madras Division, Southern Railway, Madras, headed by the 4th respondent, the General Manager, Southern Railway, Madras, was ordered to be removed from service by Ext. P13 penalty advice dated 26-8-1982 issued by the 2nd respondent, the Divisional Operating Superintendent, Southern Railway, Madras: The writ petition is for the quashing of Ext. PI3 and for the issue of a writ of mandamus directing the respondents to reinstate the petitioner in service with all attendant benefits

(2.) The petitioner was appointed to the post of Assistant Station Master, on completion of his training, by the 4th respondent by his order dated 2-1-1964, a true copy of which is Ext. P1; the petitioner was, during the material time, the elected Secretary (Finance) of the All India Station Masters' Association, Southern Zone; an extract of Art.3 of the Constitution dealing with the objectives for which the said Association was established is Ext. P2; Ext. P3 is the extract of the proceedings of the Central Committee of the Association which met at Lucknow on the 3rd and 4th May 1981; Ext. P4 is an extract of the discussion of a statement of Railway accidents made in the Rajya Sabha on 18-8-1981; Ext. P5 is an extract of the letter as published in the Indian Express dated 4 8-1981; and Ext. P6 is a copy of the major penalty charge memo dated 10/14-9-1981 issued by the 2nd respondent to the petitioner stating in substance that the petitioner had committed serious misconduct and acted in a manner unbecoming of a Railway servant, in that he had sent a letter to the Editor of the Indian Express (which was published in the Indian Express on 4-8-1981) containing objectionable matters, criticising the top administration of the Railways, under the name P. K. Abdulla, without obtaining the sanction of the competent authority, contravening R.3(1)(i), 3(1)(iii) and 19(1) of the Railway Services (Conduct) Rules, 1966 (the Conduct Rules). In his representation dated 24-9-1981 (24-10-1981 ), a true copy of which is Ext. P7, the petitioner had raised certain objections, sought certain clarifications, demanded the summoning of witnesses and documents enlisted, and requested for access to documents for the purpose of preparing an effective defence statement. Ext. P8 is the true copy of the reply dated 19-12-1981 sent by the 2nd respondent to the petitioner's representation Ext P7. Therein the 2nd respondent had stated that it was up to the petitioner to secure the attendance of the witnesses to be examined at the enquiry. In the meanwhile, under the orders of the 2nd respondent dated 17/19-12-1981, a true copy of which is Ext. P9, Sri. H. Lakshmanan, ATS/MAS was appointed to be the Inquiry Officer to enquire into the charges against the petitioner. Thereafter the petitioner sent a letter dated 5-1-1982, a true copy of which is Ext. P10, to Sri. Mohinder Singh Gujral, the then Chairman of the Railway Board, requesting him to file an affidavit in the enquiry proceedings stating his real objections to the letter to the Editor which appeared in the Indian Express (Ext. P5). Ext. P10(a) is the copy of a letter dated 5-1-1982 written by the petitioner to the Editor, Indian Express. Madras, requesting him to attend the DAR enquiry as a witness. Ext. P11 is the copy of the proceedings of the enquiry dated 6-4-1982; and Ext. P12 is the copy of the defence statement thereto submitted by the petitioner. As already noticed, the copy of the penalty advice dated 26-8-1982, which is under challenge in this writ petition, is Ext. P13.

(3.) The main contentions in the writ petition are: (1) In view 'of Ext. P1 the 4th respondent, the General Manager, was the appointing authority, not the 2nd respondent, and, therefore, he alone was competent to initiate disciplinary proceedings or to issue a penalty advice in the nature of Ext. P13; (2) the identity and the contents of the letter alleged to have been sent by the petitioner to the Editor of the Indian Express, of which Ext. P5 is stated to be a reproduction, have not been proved; (3) Ext. P6 charge memo is not in conformity with the requirement of R.9(6)(i) of the Railway Servants (Discipline & Appeal) Rules, 1968 (D & A Rules); and the clarifications sought by Ext. P7 were not given; (4) Ext. P5 contained only matters of public interest which were the subjects of national debate; and hence Ext. P5 did not contain any adverse criticism to give rise to any charge; (5) the enquiry was vitiated for not having been in compliance with the relevant provisions of the D & A Rules inasmuch as the charge was vague; the attendance of the witnesses was not procured; there was delay in holding the enquiry; documents were not caused to be produced; the petitioner was not allowed to submit a second defence statement before adducing evidence in support of the defence on completion of the case of the disciplinary authority; the petitioner was not questioned to give him an opportunity to explain the circumstances in evidence appearing against him; and the finding of the enquiry officer was not supported by acceptable evidence.