LAXMI NARAIN MEHTA Vs. UNION OF INDIA

JUDGEMENT

(1.) This second appeal has been filed by Laxmi Narain Mehta, the plaintiff, whose suit was dismissed by the trial Court and further appeal was also dismissed by the lower appellant Court. The suit was filed for declaration that the order of his removal from service passed by the Railway Authorities was illegal and thus he was entitled to reinstatement and other benefits. The order of removal was passed without holding any enquiry or giving him any opportunity of hearing. Exhibit P.1 is the copy of the order dated Jan. 23, 1981. On notice of the plaint having been served, the Union of India through General Manager, Northern Railway, put in appearance. However, the defendant failed to file written statement in spite of opportunity being given. The defence was thus struck off and the defendant was ordered to be proceeded ex parte. Plaintiff himself appeared as PW1 and he produced another witness PW2 Jai Bhagwan Gupta, Head Clerk of the Railways. The trial Court dismissed the suit holding that reasonable opportunity was given to the plaintiff during the enquiry and the enquiry was not vitiated. The suit was filed beyond one year and was held to be barred by limitation. The lower appellate Court reversed the finding of the trial Court on the question of limitation and held the suit to be within time. However, on merits the suit was dismissed and judgment and decree of the trial Court were affirmed.

(2.) Learned counsel for the appellant-plaintiff has argued that copy of the report of the Inquiring Authority was not supplied to the appellant before the order of removal was passed and on that account the same is liable to be held to be illegal and violative of the provisions of Art. 311(2) of the Constitution. In support of this contention reliance has been placed on the decision of the Karnataka High Court in Mahabaleshwar Pandrinath Naik Vs. State of Karnatakas and Ors., 1981(3) S.L.R. 22 . In that case the report of the Inquiring Authority was considered by the disciplinary authority and the final order imposing the penalty was passed. The delinquent official was not given any opportunity to show-cause as to why the report of the Inquiring Authority should not be taken into consideration or relied upon. It was held that the petitioner was not afforded reasonable opportunity as required under Sec. 311(2) of the Constitution. The matter was also under consideration of the Supreme Court in Union of India & Ors. Vs. Mohd. Ramzan Khan, 1991(1) SLR 159 : 1991(1) SCT 111 (SC) , it was held therein that the delinquent was entitled to a copy of the report of the Inquiry Officer wherein the delinquent was held guilty and non-furnishing of the report would amount to violation of the rules of natural justice and the provisions of Art. 311(2) of the Constitution. As far as proposition of law as enunciated by the Supreme Court is concerned, there is no dispute. Further such a question of fact is required to be raised and proved in each case. In the plaint a general allegation was made that order of removal was illegal, null and void on the rights of the plaintiff, unconstitutional, unfounded and against facts and service rules and against principles of natural justice. It was not specifically pleaded that report of the Inquiring Authority was not supplied to him or that the same was demanded by him. While appearing as PW1 Laxmi Narain plaintiff did not state a word about any demand before the Inquiry Officer or that the same was not supplied to him. No such question was put to PW2 Jai Bhagwan Gupta, who had brought the inquiry file and deposed therefrom. Thus, this ground is not available to the appellant.

(3.) Learned counsel for the appellants has further argued that no reasonable opportunity was given to the plaintiff during the inquiry. The ex parte proceedings were wrongly taken against him when he had moved an application for change of the Inquiry Officer. In this respect PW1 Laxmi Narain did state that he moved application Exhibit P.2 before the Inquiry Officer for changing the Inquiry Officer and on that day i.e. Jan. 5, 1981 the Inquiry Officer issued him a chit-Exhibit P3 that the could resume duty. According to the plaintiff this indicated that the plaintiff was not to participate in the inquiry for his moving the application for changing the Inquiry Officer which was required to be forwarded to the disciplinary authority for action. Both the courts below came to the conclusion on going through the statements of PW1 Laxmi Narain and PW2 Jai Bhagwan Gupta that earlier similar application filed by the plaintiff for changing the Inquiry Officer had been rejected. There is no merit in this contention. There is no rule under which the Inquiry Officer could be changed. However, instructions issued on the subject dated June 19, 1974 (page 591 of Railway Establishment Rules of Labour Laws by B.S. Mainee, 1979 Edition) provides for charge of the Inquiry Officer on the ground of bias by the Reviewing Authority. Learned counsel for the appellant relies upon these instructions, and has argued that no action was taken on th application Ex. P2 made in this respect. PW2 Jai Bhagwan stated that since the application for change of Inquiry Officer was rejected and the plaintiff was informed about it, the instructions aforesaid do not contemplate filing of second application. Though the plaintiff appeared before the Inquiry Authority on Jan. 5, 1981 he did not participate in the enquiry. No advantage can be taken by the plaintiff from Ex. P-3 certificate asking him to resume duty.