MOINUDDIN Vs. DIVISIONAL MECHANICAL ENGINEER N R RLY

JUDGEMENT

(1.) This is a petition under Article 226 of the Constitution impugning the legality of an order of removal passed against the petitioner by the authorities of the Northern Railway. The case of the petitioner, as alleged in his affidavit, is this. He was employed as a Cleaner in the East Indian Railway at Allahabad on 2-2-1948, He claims to have done good work which earned him promotion. In 1955 he was working as II grade Fireman at Allahabad on the Northern Railway, which is the successor' of the old East Indian Railway. The petitioner states that his wife visited Bombay to see some relations and the petitioner applied for a return third class privilege pass for her, which was issued. According to the petitioner, his wife did actually make the journey to Bombay. On the return trip, it is further alleged, she travelled in the company of a gentleman called Moharamad Nurul Huda and his family, who were also travelling in the same train but were travelling in the Second Class. In order to remain in the company of these persons the petitioner's wife got her third class pass converted into Second Class on payment of the excess fare. Somewhere between Kara and Igatpur the Assistant Inspector of Tickets checked the compartment in which the petitioner's wife and the Hilda's family were travelling. His suspicions were aroused that the- lady travelling on the pass was Mr. Huda's wife. He, therefore, questioned Huda and took him to the Guard In-charge of the train. He was cross-examined at great length and gave a statement in writing, in which he admitted that the lady travelling with the pass was his wife. He thereupon paid the railway fare amounting to Rs. 74/4/- for third class journey from Allahabad to Bombay and back. (In other words, he was deprived of the benefit of the tree pass). It is alleged by the petitioner that Mr. Huda made the aforesaid written statement under, to quote his own words, "great confusion and nervousness" (It was subsequently proved in the enquiry against the petitioner that Mr. Huda holds two M. A. degrees and is the Principal of a local College). When the party reached Allahabad, some applications were sent to the higher authorities, allegedly, on behalf of the petitioner's wife, in which she protested that, while returning from Bombay, she was checked and made to pay Rs. 74/-. It was further stated in the telegram that, as she apprehended danger from the Ticket Examiner, she paid the aforesaid amount. Evidently, the petitioner's wife took up a position that she was the person who was travelling with Mr. Huda and that the written statement of Mr. Huda admitting that the lady travelled with him was his wife was wrong and had been given under pressure. It is not surpiising that this turn of events landed the petitioner in trouble and he was served with a charge-sheet aceusing him of serious misconduct on the ground, that a privilege pass meant for his wife was fraudulently used for the benefit of another man's wife. The petitioner was asked to submit his written explanation within 7 days, which he did. Thereupon an enquiry committee was appointed which investigated into the correctness of the charge against the petitioner. Its report has been filed as Annexure 'A' of the petitioner's affidavit. Its conclusion is in these words, "In the circumstances mentioned above it is evident that Shri Moinuddin had transferred the pass in question issued in favour of his wife to Shri Noorul Huda and thus allowed Shri Nurul Huda to misuse the same." The aforesaid finding was in due course placed before the authoritv concerned (Divisional Mechanical Engineer I Allahabad), who issued the show cause notice against the petitioner on 10-1-1957. It is in these words: "I have considered your written defence in reply to the charge-sheet No. 44P/3/55 HC dated 19-4-1955 and the report of the Departmental enquiry set up by me to enquire into the matter and your explanation at the personal interview given to you by me ....." "I have therefore come to the provisional decision that you should be removed from service "You are hereby directed to show cause in writing not later than the end of seven days from. the date of the receipt of this notice by you why the proposed penalty should not be imposed upon you." "Your reply should be given in a separate sheet, of paper quoting the number and date of this, notice." "A copy of the enquiry report in full is sent for your information also.' Sd. Divisional Mechanical Engineer No. 1"

(2.) This notice was obviously served in compliance with the provisions of Article 311(2) of the Constitution which enjoins that no Government servant "shall be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. ..."

(3.) The language of the 'show cause' notice quoted above is based on the standard form used by the Railway in such cases. It is noteworthy that the petitioner, was warned that if he did not submit his reply within the specified period, the case would be dealt with on the basis of the information available. The obvious implication of this' warning was that if he did send an explanation it would be duly considered by the Railway before his case was decided.