LEKH RAJ Vs. GENERAL MANAGER, NORTHERN RAILWAY, ETC.

JUDGEMENT

(1.) THE order of the Chief Personnel Officer, Northern Railway, dated September 15, 1966 (Annexure 'H') removing the Petitioner from Railway service with effect from September 16, 1966, in exercise of his powers to enhance the lesser penalty which, had been earlier imposed on the Petitioner for his having obtained passes and P.T.Os. for his brother and sister, during the life -time of his father, by making a false declaration that his father was not alive has been impugned in this petition under Article 226 and 227 of the Constitution on the ground that no such power is vested in Respondent No. 2 (the Chief Personnel Officer, Northern Railway) and that such a power vests only in the President of India under Rule 1735 of the Indian Railway Establishment, Code Volume I. The facts giving rise to the petition lie in a narrow compass and are really not disputed at this stage.

(2.) STATEMENT of charges, dated May 16, 1964 (extract Annexure 'A') was served on the Petitioner on May 17, 1964. There was a regular inquiry in which the Petitioner participated. The Inquiry Officer submitted his report Annexure 'B' absolving the Petitioner of the other charge, which is no more relevant, but holding him guilty of the charge of which Annexure 'A' is a copy. Thereupon, notice, dated October 22, 1965, (Annexure 'C') was served on the Petitioner to show -cause why he should not be removed from service. Petitioner submitted his detailed explanation and representation, dated October 30, 1965 (Annexure 'D') in reply to the show -cause notice. By order, dated November 17, 1965 (Annexure 'E'), the Petitioner was reduced to the next lower post (Cabinman) for two years and it was directed that his reduction would also affect his future increments. Petitioner admittedly did not prefer any appeal against the abovementioned order of punishment. The Chief Personnel Officer, Northern Railway, decided that the punishment given by the Divisional Personnel Officer in November, 1965 was inadequate. Under his orders, the Chief Personnel Officer issued a fresh show -cause notice to the Petitioner (Annexure 'F') on March 16, 1966, wherein it was stated that the gravity of the Petitioner's offence was such as to warrant a severer form of punishment and the Petitioner was called upon to show -cause, in writing, why the enhanced penalty of removal from service should not be imposed upon him. Annexure 'G' to the writ petition is a copy of the detailed reply submitted by the Petitioner to the show -cause notice Annexure 'F'. After considering the reply, the impugned order was passed by the Chief Personnel Officer, Northern Railway, on September 15, 1966. Petitioner claims to have preferred an appeal against that order and has filed a copy of the alleged appeal, dated October 8, 1966, as Annexure 'T' to the petition. Petitioner has not produced in this case any acknowledgment showing the actual filing of the appeal. Mr. R.P. Bali submits that it was not sent by post, but handed over to some Clerk whose signatures he has got on a copy of the memorandum of appeal. Even that copy has not been filed. The Respondents have stated that no such appeal is traceable on their records. No counter -affidavit has been filed in reply to the said averment contained in the written statement of the Respondents. Be that as it may, the fact remains that the Petitioner served a notice of demand, dated January 17, 1967 (Annexure 'J') on the General Manager, Northern Railway, and, not having got any redress from the Railway Authorities, ultimately filed this petition on March 14, 1967. In the affidavit of the Assistant Personnel Officer No. 1 of the office of the Divisional Superintendent, Northern Railway, New Delhi, it has been stated that the original punishment of reversion for a period of two years was not considered adequate by the Chief Personnel Officer, Northern Railway, because the gravity of the offence (charge) was such as to warrant a severer form of punishment and that the said Officer was competent under Rule 1736 of the Northern Railway Discipline and Appeal Rules to revise the orders passed by the Divisional Personnel Officer. As already stated, it has been deposed in the return that no appeal, dated October 8, 1966, or of any other date, addressed to the General Manager is found on the records of the case. Regarding the Petitioner's defence on merits to the effect that he was ignorant of the rules, it has been averred in the written statement that the Petitioner's pleading ignorance of the rules because of being illiterate is not acceptable particularly when he had himself declared that his father was not alive when he was actually alive. A copy of Rule 1736 has been filed by the Respondents as Annexure 'R/' to their return. Mr. R.P. Bali, the learned Counsel for the Petitioner, has firstly contended that in the presence of Rule 1735 of the above -mentioned Rules, the Divisional Superintendent or the Chief Personnel Officer had no jurisdiction to suo motu enhance the punishment which had been imposed on the Petitioner and that such a power vests exclusively in the President of India. Rules 1735 and 1736 are quoted below:

(3.) IT is then contended that the impugned order (Annexure 'H') is liable to be set aside as it was not a speaking order particularly when a statutory right of appeal against that order is provided by the Rules. Admittedly, no such point was taken in the writ petition. Annexure 'H' to the petition is not a copy of the whole order whereunder the impugned penalty was imposed on the Petitioner. It is a mere communication of the operative part of the order. The Petitioner did not apply for a copy of the order. He claims to have preferred an appeal against that order without having obtained a copy thereof. Even in the alleged petition of appeal (of which he has filed a copy with this writ petition) no grievance was made of the order not being a speaking one or of the copy thereto not having been supplied to him. The communication Annexure 'H' clearly stated that the penalty mentioned therein had been awarded to the Petitioner under orders of the Chief Personnel Officer. That shows that Annexure 'H' does not even purport to be the original order of punishment, or a copy of the whole of that order. Mr. Bali submits that the reasons supporting the order should be available in the order itself and it cannot be argued, to support the validity of an order of imposition of penalty, that the grounds are available in the file. That is not the position here. The grounds have not to be reconstructed from the file but could have been found from the order itself if the Petitioner had either obtained its copy or taken up a ground of this type in the writ petition which would have necessitated the Respondents to produce a copy of the whole order. I do not consider, if fair to permit the Petitioner to take up this point for the first time at the hearing of the petition without having given any suggestion of such an argument in the writ petition.