UNION OF INDIA Vs. SUMITRA DEVI

JUDGEMENT

(1.) This appeal is directed against the order of a learned single Judge dated the 8th February, 1985 passed in C. W. J. C. No. 3218 of 1980. The dismissed railway employee whose heirs are respondents in this appeal was so dismissed on December, 1976, with effect from 23rd December, 1976. The order of dismissal has been marked annexure 1 to the writ application which was sought to be quashed when the writ petitioner was alive. During the pendency of the writ application however, the writ petitioner died and his heirs were substituted in his place. It is common ground that the deceased writ petitioner was convicted on a criminal charge which conviction was upheld by this Court also. The moot question for consideration that came up before the learned single Judge was as to whether the heirs of the deceased writ petitioners could Seek a redressal of the grievances of the original writ petitioner on the basis of rule 14 of the Railway Servants (Discipline and Appeal) Rules, 1968 (hereinafter referred to as the Rules). The learned single Judge allowed the writ petition relying upon rule 14 (i) of the Rules and in support of it he relied upon a judgment of the Supreme Court in the case of Divisional Personnel Officer, Southern Railway and another vrs. T. R. Challappan (A. I. R., 1975 S. C. 2216). It was held therein that the extent and ambit of the last part of rule 14 warranted that the conviction of the delinquent railway servant would be taken as sufficient proof of his conduct and then the authority will have to embark upon a summary enquiry as to the nature and extent of the penalty to be imposed on the delinquent. If the authority was of the opinion that the offence was too trivial or technical, it might refuse to impose any penalty in spite of the conviction. This, it was held by the Supreme Court, was salutary provision which had been enshrined in the rules. These summary provisions merely imported rule of natural justices in enjoining that before taking final action, the delinquent employees should be heard and in the circumstances of the case may be objectively considered. This was in keeping with the sense of justice and fair play. If the matter had rested at that then much would have been said in support of the judgment of the learned single Judge. But as things stand today that judgment of the Supreme Court in the case of Divisional Personnel Officers, Southern Railway vrs. T. R. Challapan (A. I. R., 1975 S. C. 2216) was expressly overruled by a larger Bench of the Supreme Court in the case of Union of India and another vrs. Talsiram Patel (A. I. R., 1985 S.C. 1416). Since the judgment of the learned single Judge was delivered on 8th February 1985 and the Supreme Court by a larger Bench overruled its earlier decision on 11.7.15 that obviously could not be brought to the notice of the learned single Judge. Now a five Judge Full Bench of the Supreme Court in Union of India vrs. Tulsiram Patel (supra) has expressly laid down that rule 14 of the Rules aforementioned cannot be interpreted by itself and not (sic - -but) in conjunction with the second proviso to Article 311 (2) of the Constitution. The words "the disciplinary authority may consider the circumstances of the case and make such orders thereon as it deems fit" appearing in Rule 14 do not warrant an interpretation of rule 14 different from that to be placed upon the second proviso to Article 311 (2). It is also not possible to accept the interpretation placed upon the word "consider" in Divisional Personnel Officer, Southern Railway vrs. R A Challappan (A. I. R., 1975 S. C. 2216) as aforementioned. The Supreme Court has further gone on to add that according to the view taken in that case, a consideration of the circumstances of the Case cannot be unilateral but must be after hearing the delinquent government servant. If such were the correct meaning of the word "consider", it would render this part of rule 14 unconstitutional as restricting the full exclusionary operation of the second proviso to Articles 311 (2) of the Constitution. Moreover, the word "consider" in its ordinary and natural sense is not capable of the meaning assigned to it in Divisional Personnel Officers Southern Railway vrs. T. R. Challappan (A. I. R., 1975 S. C. 2216) The consideration under rule 14 of what penalty should be imposed upon a delinquent railway servant must, therefore, be ex parte and where the disciplinary authority comes to the conclusion that the penalty which the facts and circumstances of the case warrants is either of dismissal or removal or reduction in rank, no opportunity of showing cause against such penalty proposed to be imposed upon him can be afforded to the delinquent government servant. It was further held that the language of rule 19 of the Central Civil Services (Classification, Control and Appeal) Rules 1965 is identical with that of rule 14 of the Railway Servants Rules 1968 and the interpretation of rule 19 of the Civil Services Rules 1965 would be the same as that placed by the Supreme Court upon rule 14 of the Railway Servants Rules 1968. In this view of the matter, the earlier judgment of the Supreme Court in Divisional Personnel Officers' case (supra) on which reliance has been placed by the learned single Judge has been overruled. Therefore, the impugned judgment and order of the learned single Judge cannot be held as laying down good law.

(2.) I am, therefore, constrained to hold that the judgment of the learned single Judge has to be set aside and this appeal is accordingly allowed but, in the circumstances of the case with -out any costs.