P K SWAMY Vs. SOUTH EASTERN RAILWAY CALCUTTA

JUDGEMENT

(1.) In this application under Article 226 of the Constitution of India, the validity of the order of removal of the petitioner from railway service by the General Manager made on 9-11-1965 is challenged. The petitioner was originally appointed in 1939 as Shed Coolie. He underwent a training a five years to qualify himself to be appointed as Train Examiner. After the completion of that training, he was appointed as Train Examiner in 1945. He was working in that capacity at Waltair on 27-3-1962. On that date, two trains 1775 and 1779 reached Waltair station. The duty of the Neutral Train Examiner was to check the wagons and mark them so that repairs in regard to them as stated by him may be carried out. These repairs have to be carried out by the Train Examiner. It is alleged that on 27-3-1962 the trains reached Waltair Station at 4.30 p.m. The Neutral Train Examiner, who was also working that day, wanted the Train Examiner to carry out the repairs for another one hour so that he may complete his duty by that time. The Train Examiner seems to have refused to oblige him. Rival contentions thereafter started. While it was contended by the Neutral Train Examiner that he had marked some wagons. but the petitioner did not carry out the repairs, the Neutral Train Examiner made a complaint against the petitioner to the Head Train Examiner on whose complaint the petitioner was put under suspension on 28-3-1962. The District Mechanical Engineer framed charges against the petitioner on 4-4-1962, They were served upon the petitioner who was called upon to submit his explanation to the notice calling upon the petitioner as to why he should not be removed from service. The petitioner accordingly submitted his explanation thought that the explanation was not satisfactory. The petitioner therefore was called upon by him on 27-4-1962 to give a list of witnesses. He also mentioned therein that some Assistant Officer would hold the enquiry. In response to this notice the petitioner submitted a list of witnesses on 8-5-1962 in which he mentioned the name of Sri S. Sankaran Assistant Mechanical Engineer, as his first witness.

(2.) The enquiry went on from 15-5-1962 to 3-3-1963. This enquiry was conducted by the same Sri S. Sankaran, Assistant Mechanical Engineer, who was cited as a witness by the petitioner. The petitioner however did not raise any objection before him contending that he wanted to cite him as a witness and therefore he should not conduct the enquiry. On the completion of the enquiry, Mr. Sankaran submitted a report on 16-7-1964. This report was submitted by the Enquiry Officer to the General Manager as he was the authority to remove the petitioner from service. The petitioner was an ex-employee of the B. N. Railway Co., which was subsequently merged in the Indian Railways. The General Manager was of the opinion that the petitioner was guilty of the charges levelled against him. Evidently he did not agree with the report of the Enquiry Officer. He therefore served the petitioner with a notice on 14-7-1965 to show cause as to why he should not be removed from service on the two charges mentioned therein which in his opinion, had been found to have been proved. The petitioner submitted his explanation on 9-9-1965 and further supplemented it by another explanation on 18-10-1965. The General Manager finally passed an order on 8-11-1965 which removed the petitioner from service. This order of removal was communicated by the Deputy Chief Personnel Officer. South Eastern Railway to the petitioner on 25-11-1965. It is this order that is now impugned in this writ petition.

(3.) Mr. C. Poorniah, the learned counsel for the petitioner, raised before me three contentions. It was firstly argued that the District mechanical Engineer who framed the charges and appointed the Enquiry Officer, was not competent to initiate the proceedings, frame charges or appoint any Enquiry Officer. The argument is that since the petitioner is an ex-employee of B. N. Railway Co., he could be removed only by the General Manager and the charges should be framed in view of the delegation made by the General Manager to the heads of the Departments by the Head of the Department. It is the Head of the Department that could not only frame the charges but either conduct the enquiry himself or direct any other officer to conduct the enquiry and submit a report. In support of this contention, reliance was placed upon page 5 of the South-Eastern Railways Pamphlet issued on 11-10-1957 dealing with the procedure for conducting enquiries into the conduct of Non-Gazetted Railway Employees, Paragraph 12 at page 5 is as follows;