I N SRIVASTAVA Vs. UNION OF INDIA

JUDGEMENT

(1.) This petition under Article 226 of the Constitution of India has been filed by I. N. Srivastava. who was a confirmed Stock Verifier of Accounts Department in Northern Railway. Lucknow, working under the Senior Accounts Officer in the same Railways at Lucknow. He was attached to the Loco Workshop. Charbgsh. Lucknow, His primary duty consisted of verification of delivery of sold materials to the contractors in accordance with agreements. On 12-4-1966 the petitioner witnessed the loading of sold material Shop Sweeping and Rubbish and Iron Foundry Clinkers which was loaded in two trucks after weighment. After the trucks had passed out of the gate and had proceeded some distance thev were subjected to a raid by two raiding parties of the Railway Board. These were subjected to re-weighment in the presence of witnesses brought bv Vigilance On re-weighment it was said to have been found that the trucks contained 220 and 452 Kgs. material in excess of that which was shown to have been actually delivered. The contents of these trucks were placed under lock and key. Thereafter, the petitioner was served with an office memo dated 14-9-1967 bv which I. N. Srivastava was ordered to face disciplinary enauiry (Annexure 1 of the writ petition) and he was also served with charges which are contained in Annexures Nos. 2 and 3 of the writ petition. The submitted reply to the charges framed against him bv the Senior Accounts Officer, Northern Railway. Alambagh. Lucknow. who was the disciplinary authority of the petitioner. who exonerated the petitioner of all the charges on 6-7-1968, a fact appearing from letter of the General Manager. Northern Railway (Annexure No. 5 of the writ petition). After two years of the order of exoneration the General Manager reviewed the petitioner's case, set aside the order of exoneration holding that a departmental enauiry was not held in the case and appointed another Enquiry Officer, namely, Sri Kapoor Singh, and directed him to initiate action for imposition of major penalty and to carry on departmental disciplinary enauirv into the charges already framed and served upon the petitioner. This order is contained in the letter of the General Manager dated 6-6-1970 (Annexure No. 6 of the writ petition). Thereafter, the petitioner was served with a show cause notice dated 27-12-1972 proposing the penalty of his reduction to the next lower grade (Annexure No. 7 of the writ petition). The petitioner challenges the legal validity of the orders contained in Annexure Nos. 6 and 7 On the ground that the General Manager had no iurisdiction to review the order of exoneration of the petitioner after a lapse of two years and that no disciplinary proceedings were pending against the petitioner on 6-6-1970, he having been exonerated on 6-7-1968. The provision for review contained in Rule 25 of the Railway Servants (Discipline and Appeal) Rules, 1968 (hereinafter referred to as the 1968 Rules) did not apply and the General Manager had no Power to pass the impugned order contained in Annexure No. 6 under Rule 25. The order of review being on these contentions lacking in iurisdiction the show cause notice which was passed in implementation of that order was also illegal" The petitioner on these grounds prays for quashing of Annexures Nos. 6 and 7 by certiorari.

(2.) The above facts are not disputed bv the opposite parties in their counter-affidavit, but they contest that the General Manager had no iurisdiction to review the order of exoneration under Rule 25 of 1968 Rules. The opposite parties maintain that no disciplinary enauirv was in fact held by the Senior Accounts Officer who without any such enauirv took the view that the petitioner should be exonerated of the charges framed against him and he communicated this to the Deputy Chief Accounts Officer. The recommendation of the Senior Accounts Officer to the Deputy Chief Accounts Officer was only in the nature of a proposal. The petitioner was never in fact exonerated because no order exonerating him of the charges was actually issued or served upon the petitioner.

(3.) The first submission of the learned counsel for the petitioner is that order of the General Manager dated 6-6-1970 (Annexure No. 6 of the writ petition) reviewing the order of exoneration made by the Senior Accounts Officer was one without jurisdiction, because no such order could be passed under Rule 25 of 1968 Rules and in any case it could not be passed more than six months after the date of the order to be reviewed. The Railway Servants (Discipline and Appeal) Rules, 1968 were enacted bv the President under Article 309 of the Constitution regulating the prpcedure for disciplinary action against railway servants. It came into force on the 1st dav of October, 1968. Before this disciplinary Proceedings against Railway servant except those in the Railway Protection Force were regulated by Rules 1701 to 1738 contained in Chapter XVII of Indian Railways Establishment Code. Volume I. Rule 29 of 1968 Rules repeal the Discipline and Appeal Rules for railway servants other than those employed in the Railway Protection Force which were in force from 1-8-1961 and also orders issued thereunder in so far as they are inconsistent with these rules. Rule 29, however, contained saving provisions. The proviso to Rule 29 is couched in the following language: