UNION OF INDIA Vs. ONKAR SINGH JOHARI

JUDGEMENT

(1.) THE plaintiff respon dent was a Travelling Ticket Examiner in the North Eastern Railway and on 11-8-59 he was working as such on the 39 Up Passenger between Pilibhit and Shahjahanpur. The said train was raid ed by the Magisterial Checking Squad. One of the first class compartments of the said train was found bolted from inside. After the said compartment was opened the plaintiff was found asleep in the said compartment. Besides him two others passengers who were travelling without ticket in the same compartment were produced before the Magistrate and during their trial it was disclosed that they were travelling with the permission of the plaintiff-respon dent. The District Traffic Superinten dent ordered an enquiry against the plaintiff-respondent. One Shri H. R. Bhagga, the then Assistant Traffic Superintendent Izatnagar, was appointed the enquiring officer. Sri Bhagga found the charges of serious misconduct estab lished against the plaintiff. He submit ted the result of his enquiry to the Dis trict Traffic Superintendent who agreed with the findings and gave a show cause notice proposing the penalty of removal from service and finally ordered his re moval. The plaintiff respondent, after necessary notice under Section 80, Civil P. C., filed the suit out of which this appeal has arisen. It was contended by the plaintiff that the District Traffic Superintendent was not competent to award the punishment of removal from service. The trial court decreed the plaintiff's suit and the decree of the trial court was confirmed by the lower ap pellate court. According to the findings of the court below the District Traffic Superintendent was neither empowered to charge-sheet the appellant nor was he empowered to order an enquiry and award the punishment of removal from service.

(2.) THE reasoning of the courts below is that the plaintiff was charged with an offence the maximum penalty for which was dismissal and therefore the General Manager alone was compe tent to remove him from service.

(3.) THE next question for deter mination is whether the order of the removal passed by the District Traffic Superintendent was an order of a com petent authority or not. The well re cognised rule is that the appointing authority can dismiss the employee in the absence of any statutory provision to the contrary. The Indian Railway Establishment Code, Chapter XVII, deals with Discipline and Appeal Rules (Non gazetted) Staff. Rule 1702 enumerates the penalties that may be imposed on railway servants. Removal from service and dismissal from service are two dis tinct penalties enumerated in sub-els. (7) and (8) of the said rule. Rule 1703 states the consequences of the two penalties. It says that dismissal from service shall disqualify the railway servant from future employment but removal from service is not an absolute disqualifica tion. Rule 1704 deals with the autho rity competent to impose penalty and is as follows: