UNION OF INDIA (UOI) Vs. BURMA NAND

JUDGEMENT

(1.) THIS is a regular second appeal by the Union of India, challenging a decree for declaration, passed in favour of the Plaintiff -Respondent, in the circumstances hereafter.

(2.) BURMA Nand, Plaintiff -Respondent, served in the Railway Workshop, Jagadhri, as a skilled fitter. In the month of August, 1968, a charge was levelled against him that he put a gherao against the Works Manager at the Railway Workshop. A departmental enquiry was held against him. As a result of that departmental enquiry an order of dismissal was recorded against him, by the Deputy Chief Mechanical Engineer, Jagadhri, -vide his order, dated 14th July, 1969. Prior to the aforesaid order of dismissal, an earlier act/ acts, complained of, had merited dismissal of the Plaintiff, -vide an order, dated 14th February, 1969. Thus, it is patent that in a span of five months, there were two orders of dismissal against the same employee. The Plaintiff challenged the earlier as well as the later orders of dismissal, through two separate suits. Undisputably, the suit filed by the Plaintiff, to get set aside the earlier order, dated 14th February. 1969, was dismissed and became final between the parties. The Plaintiff also challenged the later order of dismissal, dated 14th July, 1969, by way of the present suit, out of which the present appeal has arisen on a number of grounds. He challenged the order, basically on two suggested faults. In the first place, his claim was that the order of removal was illegal, void and inoperative, for factual and legal reasons mentioned in the plaint and in the second place, it was claimed that the second order of dismissal could not be passed at the time when he was not an employee of the employer. The Plaintiff sought a declaration to the effect that the order of dismissal, dated 14th July, 1969 be declared illegal, void and inoperative and a declaration to be granted that he still continued to be in service. On contest by the Respondent -Union of India, the trial Court framed the following three issues:

(3.) THE learned Counsel for the Appellant, appearing for the Union of India, contended that at the time when the employee was in service, undisputedly, two separate enquiries for two separate causes of action, were initiated against the public servant. He contended that the transit period of enquiry, culminating in finality, need not be similar, and has to be dissimilar in the common course of events. He explained that if the first enquiry had resulted in exoneration of the employee, concededly, the second enquiry could proceed to its finality. Conversely, it was argued that if the first enquiry resulted in an order of dismissal, the second enquiry could definitely proceed to its culmination, in order to record an order of exoneration or an order of dismissal, as the case may be. The counsel maintains that in either of the two results, the orders would be declaratory, but could be operative only if they are capable of being put into operation. If the result of the first enquiry necessitated passing of an order of dismissal by the punishing authority, its view, if challenged, could be differed from the higher authority, or the order of dismissal could be found defective by the Civil Court. In that case, it was contended, that the declaratory as well as the operative part of the order would be wiped out. It is in that eventuality that the second order of dismissal, though declaratory in nature, could be put into operation, to effectuate its intention. On this line of reasoning, it was contended, though unsupported by any precedent for and against the proposition, that the second order of dismissal could validly be passed in the presence of the first order of dismissal. The learned Counsel for the Respondent controverted this line of reasoning and put in aid the Railway Servants Discipline and Appeal Rules, 1968, to contend, that concededly, both the enquiries were conducted under the aforesaid Rules and the said Rules operate within a field when the public servant is in service. In other words, it was maintained that if the public servant was not in service on the day when the impugned order was passed, the order would be void ab -initio. In support thereof a decision of the Madhya Pradesh High Court reported in V.P. Gidroniya v. State of Madhya Pradesh and Ors., 1967 S.L.R. 243, was cited to contend that the right of the employer to proceed against an employee departmentally subsists only so long as there remains the relationship of master and servant between them; this right cannot be claimed by the employer after the relationship has ceased to exist.