UNION OF INDIA Vs. JAGANNATH

JUDGEMENT

(1.) The Union of India representing the Northen Railway has come up in Second appeal in a suit filed by the respondent challenging the order of removal passed against him. Admittedly, the respondent was a class IV employee and was posted as a Fireman at Kanpur in Nov., 1956 when he was given orders for transfer. It is alleged that he was never served with the order of transfer though he otherwise came to know about it and made representations for its cancellation. Admittedly, he bad not joined the duty at the place of his positing after transfer and only reported there in May, 1957. Thereafter he was served with a suspension order and one man enquiry against him was set up. The Loco Inspect or, Allahabad was appointed the Enquiry Officer. After having been found guilty, he was given a second show cause notice and ultimately the D. M. E. passed the impugned order. After exhausting the departmental channels without success, the plaintiff filed the present suit. The courts below have concurrently held that the constitution of one man Enquiry Committee was wrong and against the rules and has also found some other grounds to declare the order of removal as invalid.

(2.) In appeal, the entire dispute was raised again but in my opinion the appeal can be disposed of on a short point. It is not disputed that Discipline and Appeal Rules for Non-gazetted Railway Servants apply to the facts of the present case and they have the statutory force of law. Any violation of these rules, therefore, would afford a ground to the plaintiff to question the legality of the order of removal. Rule 42 of these Rules lays down how the Enquiry Committee has to be constituted. According to it, in the case of Non-gazetted Railway Servants, departmental enquiry committee should normally be constituted by two or three gazetted officers but in the case of Class IV employees it is laid down that where it was considered appropriate, the enquiry committee could consist of two senior subordinates. The plea which has been accepted by the two courts belows is that the one man enquiry committee could not have been constituted and on the basis of its report, no order of removal could be passed.

(3.) Sri Lal Ji Sinha, learned counsel for the appellant, however, submitted that these rules are merely for guidance and any violation thereof should firstly be raised before the enquiry committee itself and secondly even if there is non-observance of the rule, it does not invalidate the entire proceedings and these rules are not mandatory. According to him, when the rule itself says that the committee may consist of two senior subordinate itself shows that there is a lot of discretion left with the authorities in the matter of appointment of enquiry committee. can not agree to this submission.