RAM PRADESH DRIVER Vs. GENERAL MANAGER EASTERN RAILWAY

JUDGEMENT

(1.) THIS appeal is directed against an order of our learned brother sinha, J. , dismissing the application of the appellant, in which it was prayed that the order of his removal from the railway service should be quashed and be set aside by a writ in the nature of a mandamus or by other appropriate writs.

(2.) THE long account of the relevant facts shortly is: On November 5, 1938, the appellant entered the Railway service, In the year 1955, he was acting as an engine driver. On May 18, of the said year, he, at his own request, got himself transferred from Barkakhana to asansol. He gave a written declaration that he would not require Railway quarters at Asansol. It is stated that while at Asansol, the appellant forcibly occupied a room in the quarters, meant for another person. As he refused to vacate, even after repeated requests a charge sheet was issued on January 10, 1956 on the appellant, which however was dropped ; when on June 31, 1956, he was allotted a room in the Railway quarters. But the appellant was net satisfied. Dispute arose between him and one Mr, Barbaro, the Assistant Mechanical Engineer, stationed at Asansol, over the occupation of the quarters by the appellant. Thereupon the Railway authorities decided to transfer him back to Barkakhana, on which the Loco Foreman, Barkakhana, wrote a letter to the loco Foreman, Asansol, on September 13 (20), 1956 to inform the appellant that at present there was no quarter available at Barkakhana. His transfer at that stage was therefore kept in abeyance. On September 17, 1956, the Divisional Personnel Officer, Asansol, directed the appellant to obtain an application for pass on transfer. On the appellant's representation against the order of his transfer to Brakakhana, the divisional Superintendent, asansol directed him to carry out the orders immediately. He was further directed to submit his application for passes on transfer at once. On October 24, 1956, the appellant interviewed the Divisional personnel Officer, who again advised him to put in an application for transfer passes to Barkakhana with immediate effect. He was reminded that he should carry out his orders. He was further told that if he did not put in his application for transfer of passes within the next 3 or 4 days, severe disciplinary action would be taken against him for disobedience of his orders. The appellant however did not put in any application for his transfer passes to barkakhana but on November 5, 1956 he saw mr. Barbaro who recorded the interview which was to the effect that the appellant told him, that he would not go on transfer, even at the cost of his job. The matter was discussed by Mr. Barbaro with the Divisional Superintendent who instructed him that since this was the appellant's attiutde, he should be placed under suspension and a charge sheet under item no. 6 viz. h "removal from service" should be given, with regard to his disobedience of orders and insolence. On November 9, 1956, the charge sheet was issued. It was handed over on November 15. The charge was in substance that the appellant had refused to carry out the orders in spite of repeated requests for getting himself transferred to Barkakhana and refused to vacate his quarters at Asansol, thereby disobeying the orders of his superiors. The further charge was that he behaved with mr. Barbaro in an insolent manner and "these actions amount to serious misconduct and disobedience of orders". On November 30, 1956 the appellant showed cause to the same. It was stated inter alia that he nurtured an ambition to educate his children but the proper facility was lacking at Barkakhana. As he could not pursue his studies for want of proper opportunities, he is now keen to fulfil his ambition by imparting education to his children at Asansol. He further stated that he tolerated various inconveniences and difficulties at Asansol by looking at the faces of his children and for their studies. He slated about the differential treatment meted by Mr. Barbaro (an Anglo-Indian) to the other Anglo-Indian drivers, According to the appellant the same treatment was not meted out to him by Mr, Barbaro he being a Harijan, down-trodden in the Society. He denied that he refused to carry out or disobey the orders. As the appellant was feeling helpless, he prayed for reconsideration of the order of his transfer. On Nov. 30, 1956, the Divisional superintendent, Asansol, directed a departmental enquiry to be held by the assistant Mechanical Engineer. The appellant was informed of the same. The enquiry was adjourned to December 27, 1956, as the appellant reported sick, the same had to be postponed on january 5, 1957 and also thereafter, at his request. Ultimately the enquiry was fixed to be held on January 25, 1957. On the said date, the appellant wanted to have it again postponed. A suggestion by the defence counsel was put by way of an application to the Chairman, enquiry Committee to put the appellant to his duty with immediate effect and postpone the enquiry till such time mr. Barbaro comes back from leave, as he is the main complainant; more so, as the appellant has also complaints against Mr, Barbaro. The evidence of barbaro being not considered necessary, the enquiring officer proceeded with the enquiry on the said date i. e. , on January 25. The appellant gave evidence and he was cross-examined. On being questioned as to why he did not obey the orders and carry out the instructions, his answers were, "i did nothing about this" ; "i did not apply for any passes as I got no opportunity to do the same" and he further told that he was prepared to apply for passes to go to barkakhana leaving his family at asansol, provided his family members are allowed to remain in the quarters he was now occupying and that he was only ready to carry out the orders on promotion. Lastly in answer to question No. S as the whether he still persists in his refusal to carry out the orders of transfer unconditionally, the answers was "i refuse to carry out the orders unless the conditions I lay down above, are fulfilled". Thereafter the enquiry Committee, inter alia found on evidence that the appellant was responsible "for deliberate disobedience of orders and mis-conduct. "

(3.) IN the Report of the Enquiry committee, it was noted that the appellant's reply to the charge sheet was more in the nature of an appeal than answer to the charge. The fact of his persistence in his refusal to carry out the orders was also noticed. A show cause notice was thereafter issued to the appellant on february 16, 1957 by the Divisional mechanical Engineer. As this was done through mistake, the same was cancelled. A fresh show cause notice was issued by the Divisional Superintendent on April 2, 1957. On April 10, 1957, the appellant submitted his explanation, It was considered by the Divisional Superintendent. On April 27, 1957, the appellant WPS removed from service as a disciplinary measure. Thereafter the Rule was issued which was ultimately discharged by Sinha, J. against which the instant appeal has been preferred.